L.B. et al v. Katonah-Lewisboro Union Free School District et al

Filing 68

OPINION & ORDER re: 55 MOTION for Summary Judgment , filed by J.B., L.B. Plaintiffs' Motion for Summary Judgment is denied. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 55.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/14/16) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

L.B. and J.B., individually, and on behalf of S.B., a
minor,
Plaintiffs,

Case No. 14-CV-6805 (KMK)
OPINION & ORDER

v.
KATONAH-LEWISBORO UNION FREE SCHOOL
DISTRICT,
Defendant.

Appearances
Peter D. Hoffman, Esq.
Law Office of Peter D. Hoffman, PC
Katonah, NY
Counsel for Plaintiffs
Daniel Petigrow, Esq.
James P. Drohan, Esq.
David H. Strong, Esq.
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP
Hopewell Junction, NY
Counsel for Defendant
KENNETH M. KARAS, United States District Judge:
L.B. and J.B. (collectively, “Plaintiffs”), bring this Action individually, and on behalf of
their child S.B., pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq., seeking to overturn the State Review Officer’s determination that Plaintiffs are
not entitled to compensatory education as a remedy for the alleged failure of the KatonahLewisboro Union Free School District (“Defendant,” or the “District”) to provide a free
appropriate public education (“FAPE”) to S.B. during the 2011-12 and 2012-13 school years, as
well as that the District is not required to reimburse Plaintiffs for their unilateral placement of

S.B. at Westfield Day School (“Westfield”) for the 2012-13 and 2013-14 school years. (Dkt. No.
27.) Before the Court is Plaintiffs’ Motion for Summary Judgment (“Motion”). (Dkt. No. 55.)
For the reasons set forth below, Plaintiffs’ Motion is denied.
I. Background
A. Factual Background
Because district courts generally owe appropriate deference to the findings of fact made
by a the State Review Officer (“SRO”), see S.A. ex rel. M.A.K. v. N.Y.C. Dep’t of Educ., No. 12CV-435, 2014 WL 1311761, at *1 (E.D.N.Y. Mar. 30, 2014) (noting that the district court “is not
an expert on education or childhood learning disabilities” and thus awarding “appropriate
deference” to “[t]he SRO’s findings of fact”), this Court adopts the SRO’s factual findings as its
own unless otherwise noted below, see id. (adopting “the SRO’s findings of fact as its own
unless otherwise noted”); T.L. ex rel. B.L. v. Dep’t of Educ., No. 10-CV-3125, 2012 WL
1107652, at *1 n.1 (E.D.N.Y. Mar. 30, 2012) (giving “the SRO’s well-supported findings of
fact . . . due deference” and “therefore adopt[ing] the SRO’s findings of fact as its own” (internal
quotation marks omitted)). For the sake of convenience, however, the facts relevant to the
instant determination are as follows.1

1

There are considerable conflicts in the facts as presented by the Parties. (Compare
generally Pls.’ Local Civil Rule 56.1 Statement of Material Facts (“Pls.’ 56.1”) (Dkt. No. 58),
with Def.’s Resp. to Pls.’ Local Civil Rule 56.1 Statement and Local Civil Rule 56.1 CounterStatement of Material Facts (“Def.’s 56.1”) (Dkt. No. 60).) However, because the SRO’s wellsupported findings of fact are entitled to deference, see S.A., 2014 WL 1311761, at *1; T.L., 2012
WL 1107652, at *1 n.1, this Court adheres to the facts as set forth in that decision, (see State
Review Officer Decision (“SRO Op.”) 3–9), unless doing so would be contrary to the weight of
the evidence.
2

1. S.B.’s Educational History
S.B. is a child with a disability. (State Review Officer Decision (“SRO Op.”) 3.) There
is no dispute as to his eligibility for special education programs and related services as a student
with an other health impairment. (Id. at 3 n.1; cf. J-6; J-8; P-II.) 2 Since moving to the District
prior to the 2004-05 school year, S.B. received special education services from the District,
consisting of resource room services and, at unspecified times, speech-language therapy. (SRO
Op. 3 (citing J-22); see also Tr. 2280.)
On June 3, 2011, a Committee on Special Education (“CSE”) convened to develop S.B.’s
Individualized Education Program (“IEP”) for the 2011-12 school year, when he would enter the
tenth grade. (SRO Op. 3 (citing J-3).) The June 2011 CSE recommended one 40-minute session
of resource room daily in a 5:1 ratio, as well as one 30-minute session of counseling per week in
a 5:1 ratio. (Id. (citing J-3).) The June 2011 CSE further recommended additional supports and
modifications, such as scaffolded study guides, checks for understanding, additional time for
long-term projects, the breaking down of directions and tasks into smaller components, and the
use of a graphic organizer. (Id. (citing J-3).)
The CSE reconvened on December 2, 2011 to consider Plaintiffs’ request for additional
resource room services for S.B. (Id. (citing J-4).) Following discussion on the issue, the
December 2011 CSE declined to add another resource room in S.B.’s IEP. (Id. (citing J-4).)
However, the December 2011 IEP indicated that his English and Global Studies teachers offered
to provide “extra help” to S.B. and to “collaborate with [his resource room teacher] on a weekly

2

As used herein, Joint Exhibits from the underlying administrative proceeding are
identified by “J-,” District exhibits are identified by “D-,” and Plaintiffs’ exhibits are identified
by “P-.” “IHO-” refers to Impartial Hearing Officer Exhibits, and “Tr.-” refers to the pages of
the transcript from the impartial hearing.
3

basis.” (Id. (alteration in original) (quoting J-4).) The IEP further stated that the CSE would
“reconvene at the end of January [2012] to discuss whether this plan [was] enough to address
[S.B.’s] educational needs.” (Id. (first and second alterations in original) (quoting J-4).) As an
added support, the December 2011 IEP provided that S.B.’s regular education teachers, in
collaboration with his resource room teacher, would modify S.B.’s curriculum/classwork and
homework assignments. (Id. (citing J-4).)
The CSE reconvened on January 31, 2012 and concluded that the “extra help” described
in the December 2011 IEP “ha[d] worked,” though “not consistently as [S.B.] d[id] not always
cho[o]se to go” to additional help sessions with his teachers. (Id. (first and third alterations in
original) (quoting J-5).) The January 2012 IEP added a testing accommodation for S.B. whereby
he would take all Global Studies tests in a separate location. (Id. (citing J-5).)
On April 13, 2012, the CSE recommended that S.B.’s counseling services be provided on
an individual basis, though such a change was not made to his April 2012 IEP. (Id. at 4 (citing J6).) The April 2012 CSE also recommended that the District conduct a functional behavioral
assessment (“FBA”) and develop a behavioral intervention plan (“BIP”). (Id. (citing J-6).)
Placement in a special class for English was discussed but not recommended. (Id. (citing J-6).)
In an email to the District, dated April 18, 2012, Plaintiffs disavowed any interest in such
placement. (Id. at 4 n.2 (citing D-16).)
At a meeting on June 4, 2012, the CSE added one 30-minute session of individual
counseling per week to S.B.’s IEP and added access to a word processor/computer as a testing
accommodation for Social Studies and English examinations. (Id. at 4 (citing J-7).) In a letter
dated October 12, 2012, Plaintiffs “reject[ed]” the June 2012 IEP as “not appropriate.” (Id.
(alteration in original) (quoting P-B).) Plaintiffs stated that they would place S.B. at Westfield

4

and “demand[ed] tuition reimbursement” from the District as well as the cost of “transportation
to and from Westfield.” (Id. (alteration in original) (quoting P-B).) Plaintiffs removed S.B. from
the public school on October 16, 2012, (id. (citing D-21)), and the District acknowledged receipt
of their completed “Withdrawal of Student Form” in a letter dated October 19, 2012, (id. (citing
D-22)).
On October 25, 2012, the CSE convened to discuss a private evaluation of S.B. by a
clinical neuropsychologist, which Plaintiffs had obtained and provided to the District. (Id.
(citing J-8; J-22).) Upon consideration of this evaluation, the October 2012 CSE amended S.B.’s
preexisting educational program to include a 15:l+l special class for English and Social Studies,
one 30-minute session of individual speech-language therapy per week, and one 30-minute
session of small group speech-language therapy per week. (Id. (citing J-8).) In addition, the
October 2012 CSE added access to a word processor/computer as a supplementary aid/service
and flexible scheduling as a testing accommodation. (Id. (citing J-8).) The IEP also reflected
that Plaintiffs informed the CSE that it was their “intention to have [S.B.] continue [at
Westfield].” (Id. (second alteration in original) (quoting J-8).)
On June 3, 2013, the CSE reconvened to conduct S.B.’s annual review. (Id. (citing J31).) After considering a progress report card and letter submitted by Westfield, (J-29; J-30), as
well as updated information provided by J.B., (J-24), the CSE recommended for the 2013-14
school year “continuation of all IEP program[ming] [and] service[s]” from the October 2012
IEP, (SRO Op. 4 (alterations in original) (quoting J-31)). The June 2013 IEP reflects that
Plaintiffs rejected that program at the CSE meeting. (Id. (citing J-31).)
On August 28, 2013, the CSE reconvened to consider evaluations of S.B. recently
conducted by the District as well as materials submitted by Plaintiffs. (Id. at 5 (citing J-40).)

5

The August 2013 CSE revised S.B.’s speech goals “to more accurately reflect [his] needs as per
the evaluations” and, aside from removing its special class recommendation for Social Studies,
maintained its prior program recommendations. (Id. (quoting J-40).) In a letter dated September
6, 2013, Plaintiffs rejected the August 2013 IEP. (Id. (citing J-41).) Plaintiffs indicated that S.B.
would attend Westfield during the 2013-14 school year and that they “reserv[ed] the right” to
seek the costs of S.B.’s education as well as “mileage to and from . . . Westfield” for the 2013-14
school year. (Id. (alterations in original) (quoting J-41).)
2. Due Process Complaint
Plaintiffs, individually and on behalf of their son S.B., filed a due process complaint
notice against the District on January 2, 2013. (Id. (citing IHO-1).) In their second amended due
process complaint notice, dated September 10, 2013, Plaintiffs alleged that the District failed to
offer S.B. a FAPE for the 2011-12, 2012-13, and 2013-14 school years and further, that it failed
to implement S.B.’s IEPs during the 2011-12 and 2012-13 school years. (Id. (citing IHO-10).)3
For relief, Plaintiffs sought compensatory education and, for the 2012-13 and 2013-14 school
years, the costs of S.B.’s tuition at Westfield. (Id. (citing IHO-10).) Plaintiffs additionally
requested reimbursement for “mileage costs for transportation” associated with S.B.’s attendance
at Westfield for the 2012-13 and 2013-14 school years. (Id. at 6 (quoting IHO-10).)
a. Impartial Hearing Officer’s Decision
The impartial hearing took place over 13 days between May 2013 and November 2013.
(Id. (citing Tr. 1–2664).) As noted by the SRO, (see id. at 7), the IHO’s 81-page decision
provides a comprehensive review of the testimonial evidence adduced during those proceedings,

The second amended due process complaint also raised an issue regarding the District’s
disclosure of confidential information. (IHO-10.) However, that issue was not addressed by the
Impartial Hearing Officer (“IHO”), and Plaintiffs did not pursue it on appeal. (SRO Op. 5 n.6.)
3

6

(see Impartial Hearing Officer Findings of Fact and Decision (“IHO Op.”) 3–59). The Court,
therefore, merely identifies those individuals whose testimony will bear on the resolution of the
instant Motion:


Dr. Catherine McNulty (“McNulty”), Special Education Supervisor for the District;



Connie Hayes (“Hayes”), Director of Special Services for the District;



Jennifer Lovallo (“Lovallo”), the school psychologist responsible for S.B.’s counseling
services;



Mark Nedell (“Nedell”), S.B.’s ninth grade teacher for academic support lab;



Paul LoFaso (“LoFaso”), S.B.’s resource room teacher in his tenth grade year;



Kathleen Anderson (“Anderson”), a certified school psychologist who evaluated S.B. in
June 2013;



Terri Lynn Wuensch, a speech language pathologist employed by the District;



Jeanetta Bryant (“Bryant”), S.B.’s tenth grade English teacher;



Pamela Heldman (“Heldman”), Academic Director and Assistant Director of
Administration at Westfield;



Dr. Melanie Egnal (“Egnal”), the clinical neuropsychologist who evaluated S.B. in
May/June 2012 and again in June 2013;



Dr. Robin Jilton (“Jilton”), a private psychologist who first evaluated S.B. in March 2011
and worked with him until January 2013;



J.B., S.B.’s mother;



Vicki LePage (“LePage”), Plaintiffs’ educational consultant.
In a decision dated February 21, 2014, the Impartial Hearing Officer (“IHO”) found that

the District offered S.B. a FAPE for the 2011-12, 2012-13, and 2013-14 school years. (SRO Op.
6 (citing IHO Op. 63–72, 81).) The IHO accordingly denied Plaintiffs’ requested relief. (Id.
(citing IHO Op. 80–81).)

7

Having concluded that the District offered the student a FAPE for the 2011-12, 2012-13,
and 2013-14 school years, the IHO observed that she need not issue findings as to the
appropriateness of Westfield or as to equitable considerations related to compensating Plaintiffs
for the costs of having S.B. attend Westfield. (Id. at 8 (citing IHO Op. 72, 78).) Nevertheless,
the IHO found, in the alternative, that Westfield was an inappropriate unilateral placement
because Plaintiffs failed to introduce evidence that Westfield provided S.B. with specially
designed instruction. (Id. (citing IHO Op. 74–75).) The IHO also issued alternative findings as
to equitable considerations. (Id. at 9 (citing IHO Op. 78–80).) She found that Plaintiffs’ failure
to provide adequate notice of the S.B.’s removal from the District during the 2012-13 school
year would have resulted in a complete denial of tuition reimbursement. (Id. (citing IHO Op.
78–79).) As for the 2013-14 school year, however, the IHO found that the District was aware of
Plaintiffs’ dissatisfaction with S.B.’s program because the impartial hearing commenced prior to
the start of the school year and thus noted she would not have denied relief on that basis. (Id.
(citing IHO Op. 79).) Highlighting arguments that “were distractions at best” and “several
occasions on which [she] had to admonish counsel, parties, and witnesses,” the IHO further
noted that neither Party’s conduct weighed in favor or against Plaintiffs’ requested relief. (Id.
(alteration in original) (quoting IHO Op. 80).) Lastly, the IHO denied Plaintiffs’ request for
transportation costs for the 2013-14 school year, considering that the District offered, but
Plaintiffs declined, bus transportation for S.B. for the 2013-14 school year. (Id. (citing IHO Op.
80).)4

Plaintiffs’ request for transportation costs for the 2012-2013 school year was withdrawn
during the impartial hearing. (IHO Op. 1 (citing Tr. 2270).)
4

8

b. State Review Officer’s Decision
Plaintiffs timely appealed the IHO’s Decision to the New York Office of State Review
(“OSR”) seeking to reverse the IHO’s decision denying compensatory education for the 2011-12
and 2012-13 school years, denying tuition reimbursement for the 2012-13 and 2013-14 school
years, and denying transportation costs for the 2013-14 school year. (Id.)5 The SRO rendered a
decision on September 30, 2014, dismissing Plaintiffs’ appeal. (Id. at 1, 17.)6 Specifically
adopting the IHO’s findings and conclusions with respect to the design and implementation of
S.B.’s IEPs, (id. at 15), the SRO affirmed the IHO’s conclusion that the District offered S.B. a
FAPE for the 2011-12, 2012-13, and 2013-14 school years, (id. at 16). The SRO thereby
determined that it need not reach the issue of whether Westfield was appropriate for S.B. or
whether equitable considerations supported Plaintiffs’ reimbursement claim. (Id. at 16–17.)
B. Procedural Background
On August 22, 2014, Plaintiffs commenced this Action against the District as well as the
New York State Education Department, John B. King, Jr. in his representative role as
Commissioner of Education for the New York State Education Department, OSR, and SRO
Justyn P. Bates (collectively, “State Defendants”). (Dkt. No. 1.) The District filed its Answer to
the Complaint on November 3, 2014, (Dkt. No. 12), and moved for judgment on the pleadings on
December 16, 2014, (Dkt. Nos. 15–17). On December 17, 2014, State Defendants moved to
dismiss the Complaint. (Dkt. Nos. 18–20.)

Notwithstanding the District’s argument to the contrary, the SRO determined that
Plaintiffs served their petition in a timely manner and thus properly initiated the appeal. (SRO
Op. 13.)
5

Plaintiffs point out that the SRO’s decision was over four months late and rendered only
after they had commenced this Action. (See Pls.’ 56.1 ¶ 13.) The District does not dispute this
fact. (See Def.’s 56.1 ¶ 13.)
6

9

Plaintiffs filed their Amended Complaint on January 30, 2015. (Dkt. No. 27.) The
District filed its Answer to the Amended Complaint on February 13, 2015. (Dkt. No. 30.) On
March 18, 2015, State Defendants submitted a Motion to Dismiss the Amended Complaint along
with supporting papers. (Dkt. Nos. 31–33.) Plaintiffs submitted their opposition papers on May
1, 2015, (Dkt. Nos. 41–42), and State Defendants submitted their reply on May 22, 2015, (Dkt.
Nos. 43–44). The Court held oral argument on September 9, 2015 with respect to the thenpending motions. (See Dkt. (minute entry for Sept. 9, 2015).) By Order dated September 10,
2015, the Court denied the District’s Motion for Judgment on the Pleadings as to the Complaint
as moot, denied State Defendants’ Motion to Dismiss the Complaint as moot, and granted State
Defendants’ Motion to Dismiss the Amended Complaint. (Dkt. No. 52.)
Pursuant to a briefing schedule adopted by the Court on September 22, 2015, (Dkt. No.
54), Plaintiffs filed their Motion for Summary Judgment and accompanying papers on November
16, 2015, (Dkt. Nos. 55–58). The District submitted its opposition papers on December 16,
2015, (Dkt. No. 60–61), and Plaintiffs submitted a reply on January 15, 2016, (Dkt. No. 64). The
Parties rely exclusively on the administrative record, having submitted no additional evidence. 7
II. Discussion
A. Statutory Background
The IDEA requires that states receiving federal funds provide a “free appropriate public
education” to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see also Bd. of Educ. v.
Rowley, 458 U.S. 176, 179 (1982) (describing the IDEA’s predecessor statute as an “ambitious
federal effort to promote the education of handicapped children”). A school district provides a

7

While the Parties did submit competing Rule 56.1 statements, those statements drew
exclusively from the administrative record. (See generally Pls.’ 56.1; Def.’s 56.1.)
10

FAPE when it offers “special education and related services tailored to meet the unique needs of
a particular child, [which are] ‘reasonably calculated to enable the child to receive educational
benefits.’” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation and
some internal quotation marks omitted) (quoting Rowley, 458 U.S. at 207). These services are
set forth in the child’s IEP, “the central mechanism by which public schools ensure that their
disabled students receive a [FAPE].” Polera v. Bd. of Educ., 288 F.3d 478, 482 (2d Cir. 2002);
see also 20 U.S.C. §§ 1414(d)(1)(A)–(B), (d)(3) (setting out requirements for IEPs and their
development).
“The IDEA does not itself articulate any specific level of educational benefits that must
be provided through an IEP.” M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012).
Rather, the statute ensures an “appropriate” education, but “not one that provides everything that
might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (internal quotation
marks omitted). “[A] school district fulfills its substantive obligations under the IDEA if it
provides an IEP that is ‘likely to produce progress, not regression,’ and if the IEP affords the
student with an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Cent.
Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (quoting Walczak, 142 F.3d at 130). Indeed, the
IDEA does not require schools to “maximize the potential” of students with disabilities, but
instead was intended “more to open the door of public education to handicapped children on
appropriate terms than to guarantee any particular level of education once inside.” M.H., 685
F.3d at 245 (internal quotation marks omitted).
In New York, if a parent disagrees with an IEP prepared by a school district, the parent
may challenge the IEP by requesting an “[i]mpartial due process hearing,” 20 U.S.C. § 1415(f),
before an IHO appointed by a local school board, see N.Y. Educ. Law § 4404(1)(a). The IHO’s

11

decision may be appealed to an SRO, see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2), and
the SRO’s decision may be challenged in either state or federal court, see 20 U.S.C.
§ 1415(i)(2)(A); see also M.H., 685 F.3d at 224–26 (generally describing the IHO and SRO
process).
The Supreme Court has repeatedly held that if a state fails in its obligation to provide a
disabled child a FAPE under the IDEA, the IDEA permits parents to seek reimbursement from
the school district for the private placement of their child. See Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230, 246–47 (2009); Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7,
12 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985). The IDEA
allows a district court hearing civil actions brought under the IDEA to grant “such relief as the
court determines is appropriate.” Forest Grove, 557 U.S. at 237 (quoting 20 U.S.C.
§ 1415(i)(2)(C)(iii)). However, parents who unilaterally withdraw their child from the public
schools in favor of a private placement do so at their own financial risk. See A.C. ex rel. M.C. v.
Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009).
In deciding whether tuition reimbursement for such a private placement is warranted, a
court must first consider (1) “whether the state has complied with the procedures set forth in the
IDEA,” and (2) “whether the IEP developed through the [IDEA’s] procedures is reasonably
calculated to enable the child to receive educational benefits.” Cerra, 427 F.3d at 192 (alteration
and internal quotation marks omitted). If the answer to these questions is yes, no reimbursement
is permissible. See id. (“If these requirements are met, the State has complied with the
obligations imposed by Congress[,] and the courts can require no more.” (internal quotation
marks omitted)). If no, the court then considers (3) “whether the private schooling obtained by
the parents is appropriate to the child’s needs.” Id. If it is, “equitable considerations” must

12

“support the [parents’] claim.” A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 205 (S.D.N.Y. 2010);
see also Frank G. v. Bd. of Educ., 459 F.3d 356, 363–64 (2d Cir. 2006) (“[E]quitable
considerations [relating to the reasonableness of the action taken by the parents] are relevant in
fashioning relief.” (second alteration in original) (quoting Burlington, 471 U.S. at 374)).
Because a court may order “such relief” as it deems “appropriate,” 20 U.S.C.
§ 1415(i)(2)(C)(iii), and because a reimbursement award is discretionary, see id.
§ 1412(a)(10)(C)(ii) (“[A] court or a hearing officer may require the agency to reimburse the
parents for the cost of [private] enrollment . . . .”), courts “enjoy[] broad discretion in considering
equitable factors relevant to fashioning relief,” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 112 (2d Cir. 2007) (citing Carter, 510 U.S. at 16).
B. Standard of Review
Unlike with an ordinary summary judgment motion, the existence of a disputed issue of
material fact will not necessarily defeat a motion for summary judgment in the IDEA context.
See T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per
curiam). Rather, “the procedure [in IDEA cases] is in substance an appeal from an
administrative determination, not a summary judgment motion.” M.H., 685 F.3d at 226
(alteration and internal quotation marks omitted).
This posture means that the court owes “a significant degree of deference to the state
educational agency, as [it is] essentially acting in an administrative-law-style capacity.” Mr. &
Mrs. P. ex rel. P. v. Newington Bd. of Ed., 546 F.3d 111, 118 (2d Cir. 2008). The court “must
give ‘due weight’ to [the administrative] proceedings, mindful that the judiciary generally
‘lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult
questions of educational policy.’” Gagliardo, 489 F.3d at 113 (second alteration in original)

13

(quoting Rowley, 458 U.S. at 206); see also Cerra, 427 F.3d at 191 (explaining that the “IDEA’s
statutory scheme requires substantial deference to state administrative bodies on matters of
educational policy”). While a reviewing court “must engage in an independent review of the
administrative record and make a determination based on a preponderance of the evidence,”
M.H., 685 F.3d at 240 (internal quotation marks omitted), such review “is by no means an
invitation to the courts to substitute their own notions of sound educational policy for those of
the school authorities which they review,” Rowley, 458 U.S. at 206. Rather, the standard for
reviewing administrative determinations “requires a more critical appraisal of the agency
determination than clear-error review but nevertheless falls well short of complete de novo
review. In the course of this oversight, the persuasiveness of a particular administrative finding,
or the lack thereof, is likely to tell the tale.” M.H., 685 F.3d at 244 (alterations, italics, and
internal quotation marks omitted).
“Deference is particularly appropriate when . . . the [SRO’s] review has been thorough
and careful.” Mr. & Mrs. P., 546 F.3d at 118 (alteration in original) (quoting Walczak, 142 F.3d
at 129). Specifically,
the deference owed to an SRO’s decision depends on the quality of that opinion.
Reviewing courts must look to the factors that normally determine whether any
particular judgment is persuasive, for example, whether the decision being
reviewed is well-reasoned, and whether it was based on substantially greater
familiarity with the evidence and the witnesses than the reviewing court.
R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 189 (2d Cir. 2012) (internal quotation marks
omitted); see also M.H., 685 F.3d at 241 (“The SRO’s or IHO’s factual findings must be
‘reasoned and supported by the record’ to warrant deference.” (quoting Gagliardo, 489 F.3d at
114)). This deference is further amplified when the IHO and SRO reach the same conclusion
based on the same record before a court. See B.K. v. N.Y.C. Dep’t of Educ., 12 F. Supp. 3d 343,

14

360 (E.D.N.Y. 2014) (“[D]eference is particularly apt where the IHO and SRO decisions are in
agreement and are based on the same record as that before the district court.”). Additionally, the
Second Circuit has instructed courts that deference to an SRO’s decision is more appropriate
when the substantive adequacy of an IEP, as opposed to the procedural adequacy, is at issue;
when the decision involves a dispute over an appropriate educational methodology versus
determinations regarding objective indications of progress; and when the district court’s decision
is based solely on the administrative record that was before the SRO. See M.H., 685 F.3d at 244.
C. Application
As noted above, to recover on their tuition reimbursement claim, Plaintiffs must
demonstrate that the District failed to offer S.B. a FAPE, that their unilateral placement of S.B.
was appropriate, and that the equities support reimbursement. The Court thus first assesses
whether “the [District] has complied with the procedures set forth in the IDEA,” and whether the
IEPs “developed through the [IDEA]’s procedures [were] reasonably calculated to enable [S.B.]
to receive educational benefits.” Cerra, 427 F.3d at 192 (alteration and internal quotation marks
omitted).
As an initial matter, the Court finds that Plaintiffs have not shown that deference to the
SRO’s conclusion is unwarranted.8 The SRO’s decision reflects a comprehensive review of the

8

Even if the Court agreed with Plaintiffs that the SRO’s decision does not warrant
deference due to insufficient reasoning, (see Pls.’ Reply Mem. of Law (“Pls.’ Reply”) 1 (Dkt.
No. 64)), the Court would instead “consider the IHO’s analysis, which is also informed by
greater educational expertise than that of judges, rather than . . . rely exclusively on its own less
informed educational judgment,” P.L. v. N.Y. Dep’t of Educ., 56 F. Supp. 3d 147, 159 (E.D.N.Y.
2014) (quoting M.H., 685 F.3d at 246); see also R.E., 694 F.3d at 189 (explaining that a court
“must defer to the SRO’s decision on matters requiring educational expertise unless it concludes
that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may
be considered instead”). The ultimate effect would be the same, as the SRO unequivocally
adopted the IHO’s thorough findings and conclusions as to S.B.’s IEPs for the 2011-12, 2012-13,
and 2013-14 school years. (See SRO Op. 15.)
15

record and clearly articulates the well-reasoned conclusions of the IHO, (see SRO Op. 6–8, 14–
16), which it adopts, (see id. at 15). The SRO additionally parsed two claims presented by
Plaintiffs on appeal, providing ample citations to the record and to case law in support of each
finding. (See id. at 14.) Because “[c]ourts generally defer to the final decision of the state
authorities” if the “review has been thorough and careful,” M.H., 685 F.3d at 241 (internal
quotation marks omitted), and because the SRO’s findings are supported by the evidence, the
SRO’s decision is entitled to deference.9 In this case, the SRO agreed that the District
demonstrated that it offered S.B. a FAPE for the 2011-12, 2012-13, and 2013-14 school years.
(SRO Op. 16.)
1. Whether the IEPs Offered S.B. a FAPE for the 2011-12 School Year
Adopting the IHO’s findings and conclusions, (see id. at 15), the SRO affirmed that the
District offered S.B. a FAPE for the 2011-12 school year, (id. at 16). In its thorough decision,

Plaintiffs complain that “[t]he SRO did not address the second and third prongs of the
Burlington test,” (Pls.’ Reply 1), which consider whether “the unilateral private placement was
appropriate” and “whether the equities favor reimbursement,” D.C. ex rel. E.B. v. N.Y.C. Dep’t of
Educ., 950 F. Supp. 2d 494, 513, 515 (S.D.N.Y. 2013). The SRO, however, had no obligation to
do so after having concluded that that the challenged IEPs were adequate. See M.C. ex rel. Mrs.
C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000) (“If the challenged IEP was
adequate, the state has satisfied its obligations under the IDEA and the necessary inquiry is at an
end.”); D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040, at *13
(E.D.N.Y. Sept. 2, 2011) (concluding “that the IEP was procedurally and substantively
appropriate” such that the court “need not address the adequacy of [the private placement]”),
aff’d, 506 F. App’x 80 (2d Cir. 2012).
Plaintiffs also argue that “this Court [should] reject the SRO’s findings in whole” because
“the SRO’s decision was egregiously late.” (Pls.’ Reply 1 (internal quotation marks omitted).)
“However, no authority permits courts to give less respect to SRO decisions on the basis of
delay, nor is there any logical reason to do so.” P.S. v. N.Y.C. Dep’t of Educ., No. 13-CV-4772,
2014 WL 3673603, at *7 n.3 (S.D.N.Y. July 24, 2014); see also M.L. v. N.Y.C. Dep’t of Educ.,
No. 13-CV-574, 2014 WL 1301957, at *13 (S.D.N.Y. Mar. 31, 2014) (acknowledging “that the
[SRO’s] routine delays in issuing decisions is problematic” but finding “no authority in IDEA
cases that allows [a court] to declare the SRO’s decision a nullity” (internal quotation marks
omitted)).
9

16

the IHO found that: (a) S.B. passed all of his courses in tenth grade, (IHO Op. 63), and his social
isolation did not impact him academically, (id. at 64); (b) the District’s reduction of non-essential
writing assignments, as needed, demonstrated a conscientious effort to meet S.B.’s needs, (id.);
(c) the District was not required to provide a written plan to Plaintiffs regarding the reduction of
S.B.’s assignments, although the IEP did refer to modified classwork/homework, and there were
a number of written communications about the reduction, (id.); (d) the CSE appropriately
determined not to add a second resource room for S.B., as he was not using his first resource
room productively, and there was no educational reason provided in support of that request, (id.
at 64–65); (e) the plan for S.B. to receive extra help directly from his English and Global Studies
teachers was well-intentioned and beneficial to S.B., (id. at 65); (f) the District appropriately
offered to place S.B. in a 15:1 special class for English, but this option was rejected by J.B., (id.
at 66); and (g) the District conducted an appropriate, timely FBA, and the resulting BIP, though
not fully implemented at the end of the 2011-12 school year, did not deny S.B. a FAPE because
his behavioral needs were being adequately addressed, (id. at 66–67).
a. Procedural Adequacy
This “initial procedural inquiry . . . is no mere formality, as adequate compliance with the
procedures prescribed would in most cases assure much if not all of what Congress wished in the
way of substantive content in an IEP.” A.C., 553 F.3d at 172 (internal quotation marks omitted).
Nonetheless, not “every procedural error in the development of an IEP renders that IEP legally
inadequate under the IDEA.” Id. (internal quotation marks omitted). For procedures to be
sufficient, they must provide
[a]n opportunity for the parents of a child with a disability to examine all records
relating to such child and to participate in meetings with respect to the
identification, evaluation, and educational placement of the child, and the provision

17

of a [FAPE] to such child, and to obtain an independent educational evaluation of
the child.
20 U.S.C. § 1415(b)(1). Inadequate procedures warrant reimbursement only if, individually or
cumulatively, they “impeded the child’s right to a [FAPE],” “significantly impeded the parents’
opportunity to participate in the decision[-]making process,” or “caused a deprivation of
educational benefits.” R.E., 694 F.3d at 190 (first alteration in original) (quoting 20 U.S.C.
§ 1415(f)(3)(E)(ii)); see also M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 139 (2d
Cir. 2013) (“[P]arents must articulate how a procedural violation resulted in the IEP’s
substantive inadequacy or affected the decision-making process.”). “Multiple procedural
violations may cumulatively result in the denial of a FAPE even if the violations considered
individually do not.” R.E., 694 F.3d at 190.
Plaintiffs argue that the District failed to adhere to proper procedures in developing the
2011-12 IEPs because (a) the District failed to conduct a timely FBA and devise an appropriate
BIP; (b) Plaintiffs were never provided with a written plan articulating the reduction in S.B.’s
assignments, and the District failed to adequately document that reduction; and (c) the plan for
S.B. to receive additional teacher assistance was inappropriate. (See Pls.’ Mem. of Law in Supp.
of Mot. (“Pls.’ Mem.”) 7–12 (Dkt. No. 57).) Each claim will be addressed in turn.
i. FBA/BIP
First, Plaintiffs allege that the District “failed to conduct an appropriate FBA, resulting in
a flawed BIP.” (Id. at 9 (citation omitted).) They do not, however, offer any compelling reason
for this Court to second-guess the IHO’s decision to credit Lovallo’s testimony that an FBA was
not warranted prior to spring 2012, as it was not until then that S.B.’s academic decline was
“precipitous.” (IHO Op. 66.) Moreover, contrary to Plaintiffs’ claim, (see Pls.’ Mem. 9 (citing
N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit. 8 § 200.22 (a)(2))), the record readily confirms
18

the IHO’s “find[ing] that multiple sources were used in the development of the FBA,” (IHO Op.
67; see also SRO Op. 15 (adopting the IHO’s conclusion that “the June 2012 FBA and BIP were
developed in conformity with State regulations”)), which took four weeks to complete, (see Tr.
489). These sources include classroom observation, (see id. at 489–90; J-20), multiple
interviews with S.B., (see Tr. 490–91, 499; J-20), review of S.B.’s clinical file, (see Tr. 493; J20), and interviews with S.B.’s teachers, (see Tr. 491, 493; J-20).10 In addition, Lovallo testified
that she considered prior conversations with J.B. and Jilton in completing the FBA. (Tr. 491–92,
973, 979.) Though Lovallo did not formally interview Plaintiffs, (see id. at 1063), the requisite
“multiple sources of data” explicitly includes “any relevant information provided by the
student’s parent” but at no point mandates—much less mentions—an interview with the
student’s parent, see NYCRR tit. 8 § 200.22(a)(2); cf. M.L. v. N.Y.C. Dep’t of Educ., No. 13-CV2314, 2015 WL 1439698, at *8 (E.D.N.Y. Mar. 27, 2015) (finding the requirements of
§ 200.22(a)(2) satisfied by an FBA based upon classroom observation, information provided by
school staff, and “a comprehensive psychological evaluation”); B.K., 12 F. Supp. 3d at 364–65
(finding the requirement for “multiple sources of data” satisfied where “[the student’s] FBA (and
thus his BIP) was predicated on verbal and written assessments by [private school] staff,
progress reports from [the student’s] therapists, and . . . on-site observations” (internal quotation
marks omitted)).

Plaintiffs concede that “Lovallo did interview S[.]B[.]” but nonetheless complain that
“his input is not identified in the FBA.” (Pls.’ Mem. 9.) However, Plaintiffs at no point set forth
any legal requirement—let alone persuasive justification—that such input be expressly
enumerated. (See id. at 9–10; Pls.’ Reply 4–5.) Rather, the relevant regulations merely require
that “[t]he FBA . . . be based on multiple sources of data,” which includes, inter alia,
“information from the student.” NYCRR tit. 8 § 200.22(a)(2). Lovallo’s testimony makes clear
that “S.[B.]’s own self-reporting” figured “prevalently” in her evaluation. (Tr. 499.)
10

19

Plaintiffs further allege that there was no “schedule to measure the effectiveness of the
[BIP].” (Pls.’ Mem. 9.) Yet, the BIP itself explicitly identifies how the intervention is measured,
who is responsible for recording data, and the timeline for review of the plan (6/2012, 9/2012,
11/2012, 1/2013, 4/2013, and 6/2013). (See J-21).11 Plaintiffs also ignore the fact that Lovallo
reviewed the FBA and draft BIP with J.B. and Jilton, (see Tr. 491–92, 499–501, 970–71, 973,
2423–24), both of whom expressed their satisfaction, (see, e.g., id. at 501 (testimony by Lovallo
as to J.B.’s statement that the draft BIP “was very thorough”); id. at 971 (testimony by Lovallo
that Jilton “was very pleased with the [BIP]” and “didn’t feel anything needed to be amended”)).
The FBA and BIP subsequently were reviewed at the CSE meeting on June 4, 2012 and adopted
without objection, (see J-7), a point highlighted by the IHO and the SRO alike, (see IHO Op. 67;
SRO Op. 7). In fact, J.B. signed the document, (J-21; see also Tr. 501), and only rejected the
BIP as inappropriate upon signing the contract with Westfield four months later, (see IHO Op.
67 (citing P-A, P-OO)).12

It also warrants mention that courts are generally “reluctant to find a denial of a FAPE
based on failures in IEPs to identify goals or methods of measuring progress.” P.K. ex rel. S.K.
v. N.Y.C. Dep’t of Educ. (Region 4), 819 F. Supp. 2d 90, 109 (E.D.N.Y. 2011), aff’d, 526 F.
App’x 135 (2d Cir. 2013).
11

In any event, the failure to conduct an adequate FBA “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. Here, the 2011-12 IEPs acknowledged S.B.’s difficulty in
completing assignments in a timely manner, included study skill goals designed to work on those
deficits, and provided S.B. with additional time to complete long-term projects and with
modified homework assignments. (See J-4; J-5; J-6.) The IHO found this program to be
reasonably calculated to allow S.B. to receive educational benefits, (see IHO Op. 63, 67), and
whether an IEP adequately addresses a 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,” A.C., 553 F.3d at 172 (internal
quotation marks omitted).
12

20

Nonetheless, Plaintiffs contend “[n]ot only does the SRO ignore the substantive and
procedural inadequacies in the FBA/BIP, but he also completely ignores the fact that the District
made no attempt to implement the BIP in the remainder of the 2011-12 school year after
determining S[.]B[.] was in need of an FBA/BIP.” (Pls.’ Mem. 8.) The Court finds this
statement wholly inaccurate, given the SRO’s acknowledgment that “the IHO agreed with
[Plaintiffs] that the BIP was not implemented in the 2011-12 school year,” but determined “that
this did not result in a denial of FAPE because the BIP ‘was only adopted [in June 2012] days
before final exams and the end of the school year.’” (SRO Op. 7 (alteration in original) (quoting
IHO Op. 67).) The IHO found that the failure to implement the BIP during the 2011-12 school
year “is not enough to find [the] [D]istrict has not provided a FAPE to [S.B.],” (IHO Op. 67),
and, considering the variety of other strategies used to address S.B.’s behavior (such as
counseling services and extra help), (see J-4; J-5; J-6; cf. Tr. 221), the Court agrees, see T.Y. v.
N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009) (finding that the failure to create an
FBA or a BIP did not deny a FAPE where the IEP contained other means to address the student’s
behavior); FB v. N.Y.C. Dep’t of Educ., 923 F. Supp. 2d 570, 583 (S.D.N.Y. 2013) (deferring to
“the SRO’s finding that the lack of a[n] FBA and a BIP did not deny [the student] a FAPE,” in
part because of evidence in the record of other means to address the student’s behavior).
ii. Reduction in Assignments
Plaintiffs also allege that they did not have the opportunity to participate in the decisionmaking process “because [they] were never provided with a written plan explaining how S.B.’s
assignments would be reduced or ‘modified.’” (Pls.’ Mem. 10.) In her decision, however, the
IHO noted that she could “find no authority for extending parental rights established under [the]
IDEA to a written plan concerning curriculum requirements to be provided to a parent.” (IHO

21

Op. 64 (citing Winkelman ex. rel. Winkelman v. City Sch. Dist., 550 U.S. 516 (2007)).) Indeed,
Plaintiffs have offered no such authority. In any event, the record reveals that Plaintiffs did, in
fact, “play[] a significant role in this process.” Winkelman, 550 U.S. at 524 (internal quotation
marks omitted).13 J.B., Jilton, and LePage attended the November 7, 2011 CSE meeting where
the reduction of writing assignments was discussed. (See Tr. 459–61, 613, 2301.)14 The
reduction was again discussed, then formally added to S.B.’s IEP, during the December 2, 2011
CSE meeting, at which J.B., Jilton, and LePage were all present. (See id. at 461; J-4.)
Moreover, notwithstanding Plaintiffs’ unsubstantiated claim to the contrary, (see Pls.’ Local
Civil Rule 56.1 Statement of Material Facts (“Pls.’ 56.1”) ¶ 46 (Dkt. No. 58)), the December
2011 IEP was amended to reflect the reduction in assignments, (see Tr. 460–61; J-4).15

It bears noting that the Supreme Court explained that this “significant role” pertains to
the general process of developing an IEP. Winkelman, 550 U.S. at 524 (internal quotation marks
omitted). As made clear by the myriad of Plaintiffs’ allegations, (see Pls.’ Mem. 7–14), the
reduction of non-essential assignments was only one strategy encompassed in S.B.’s 2011-12
IEPs, (cf., e.g., J-4).
13

14

While Plaintiffs acknowledge this participation in their reply, they nonetheless argue
that “[a] team meeting is not a substitute for a properly convened CSE meeting.” (Pls.’ Reply 2.)
However, Plaintiffs have offered no authority supporting such a distinction in the context of
parental participation in the IEP development process, cf. Dzugas-Smith v. Southold Union Free
Sch. Dist., No. 08-CV-1319, 2012 WL 1655540, at *27 (E.D.N.Y. May 9, 2012) (“Parental
participation requires an opportunity to examine records, participate in meetings, and . . . obtain
an independent evaluation.” (emphasis added) (internal quotation marks omitted)), and the Court
sees no logical reason for doing so.
In support of their contention that the “[six]-week trial of reducing writing
assignments . . . was never reflected on S[.]B[.]’s IEP,” Plaintiffs cite to a single page from
Lovallo’s testimony. (Pls.’ 56.1 ¶ 46 (citing, inter alia, Tr. 459).) What her testimony actually
indicates, however, is the decision that the six-week trial need not “immediately be reflected on
an IEP” but could be considered “at an upcoming CSE meeting.” (Tr. 459 (emphasis added).)
Curiously, Plaintiffs also cite to a single page from LoFaso’s testimony, (see Pls.’ 56.1 ¶ 46
(citing, inter alia, Tr. 842)), in which he confirms that the reduction in English and Social Studies
homework assignments took place at the CSE level, (see Tr. 842).
15

22

Plaintiffs separately assert that there was no documentation as to the effectiveness of this
reduction in non-essential assignments. (See Pls.’ Mem. 10–11.) While there may not have been
“ABC charts” or “plot charts” of relevant data, (see Tr. 310, 612), the record demonstrates that
various other means of assessment were used. For example, Lovallo testified that S.B.’s teachers
used his grades and classroom performance to measure whether the reduction in work was
helpful to S.B. (Id. at 612.) Much of this evidence points toward some academic progress,
which supports the IHO’s finding that “the [D]istrict was conscientious in” reducing S.B.’s nonessential writing assignments so as to address S.B.’s needs and “to help [him] move forward with
essential assignments.” (IHO Op. 64.)16 Indeed, both Jilton and LePage indicated that the
reduction in workload helped S.B., (see Tr. 2177–79; J-4), and LoFaso also testified to some
level of improvement in S.B.’s completion of assignments as a result of the reduction, (Tr. 1143;
see also D-33 (email from LoFaso indicating S.B. had caught up with his English coursework for
the first quarter)). By the end of the second quarter in January 2012, S.B. had maintained or
improved his grades in four of his five core academic classes, and he was no longer in danger of
failing English. (See J-18.) On his report card, Bryant noted that S.B. had shown some
improvement over the course of the first two quarters. (See id.; cf. J-5.)
Furthermore, as explained by Lovallo and LoFaso, the reduction in S.B.’s workload was
not continuous but rather implemented as needed throughout the year. (See Tr. 614–15, 1113.)
The IHO acknowledged this pattern, noting that the modification “was not a constant reduction”
and, although it went “well beyond the six-week trial,” the program of reductions was tailored to

While Plaintiffs allege that “there was no way to gauge his true academic progress,”
(Pls.’ Mem. 10), the record reveals that “[S.B.] was still expected to know the same curriculum[,]
and he was still being graded in the same way as other students,” (Tr. 1100). Indeed, he was still
required “to take all the tests and complete all the assignments.” (Id.)
16

23

address S.B.’s “cycle” of “inconsistent performance.” (IHO Op. 64.) Finally, while Plaintiffs
object to the alleged absence of a “documented definition” of which assignments were “nonessential,” (Pls.’ Mem. 10), the record reveals that the determination was left to the discretion of
S.B.’s individual teachers, (see Tr. 613–14; J-8; cf. Tr. 1834–35), to which the Court defers, see
S.B. v. N.Y.C. Dep’t of Educ., — F. Supp. 3d —, 2016 WL 1271690, at *5 (S.D.N.Y. Mar. 30,
2016) (“[T]eaching methodologies are typically left to the discretion of classroom teachers.”).17
iii. Extra Help
Plaintiffs allege that the extra help made available to S.B. by his English and Global
Studies teachers was ineffective in that it inappropriately placed the onus on S.B. to seek out
assistance. (See Pls.’ Mem. 11; Pls.’ Reply Mem. of Law (“Pls.’ Reply”) 3 (Dkt. No. 64).)18
The record, however, suggests a pedagogical reason for this arrangement, as Hayes testified that
the “voluntary” nature of the extra help sessions was intended to “ameliorate the pressures that
he felt” and “actually help him to not feel overwhelmed.” (Tr. 303.) The IHO explained, based
on Hayes’ testimony, that the District “wanted [S.B.] to develop self-advocacy skills to work

Notably, the October 2012 IEP indicated that “[t]he modifications afforded for
[S.B.] . . . were not above and beyond typical modifications that his teachers provided to other
students.” (J-8.)
17

Plaintiffs contend that “[t]he District’s solution to S[.]B[.]’s inability to access his
education was to offer extra help.” (Pls.’ Mem. 11.) That, however, only tells part of the story,
as the District also offered the “sensible” step of a 15:1 special class in English. (IHO Op. 66;
see also Tr. 476–78.) Indeed, the IHO noted that S.B.’s “performance at Westfield, where he
was placed in the lower form of English in [twelfth] grade [because] the [eleventh] grade class
had been too challenging for him, confirms the wisdom of the [D]istrict proposal.” (IHO Op. 66
(citing P-QQ).) Plaintiffs nonetheless maintain that the extra help sessions with S.B.’s teachers
did not work for him, (see Pls.’ Mem. 11; Pls.’ Reply 3), yet they summarily rejected this
alternative strategy on the basis of “largely speculative” concerns about S.B.’s reaction to
enrollment in a special education class, (IHO Op. 66 (citing Tr. 476–79)). In fact, as noted by
the IHO, (see id.), Jilton testified that S.B. never expressed any concern to her about enrolling in
a special education class for English, (Tr. 2223).
18

24

directly with the teachers when he was overwhelmed.” (IHO Op. 65.) Ultimately, the IHO
found that “the plan was inadequate in implementation” but nonetheless concluded that the extra
help sessions did benefit S.B. to some extent. (Id.)19 Lovallo testified to this point, even as she
noted that S.B.’s teachers felt he did not come to them consistently. (Tr. 465.) Bryant testified
to S.B.’s progress in the second quarter as a result of individual extra help sessions with her, (id.
at 1776–78), and Jilton acknowledged that the “extra support” from Bryant helped S.B. “to
organize and plan his papers,” (id. at 2131–32). Furthermore, S.B.’s progress reports from this
time indicate that he was passing every one of his classes, in contrast to the prior quarter. (J-18;
cf. Tr. 464–65.) The evidence thus confirms that, while flawed in execution, the extra help
sessions nevertheless conferred at least some educational benefit. And, in any event, the mere
that fact Plaintiffs disagreed with this strategy does not signify that they were deprived of the
“opportunity to meaningfully participate in the IEP development process.” Dirocco ex rel. M.D.
v. Bd. of Educ., No. 11-CV-3897, 2013 WL 25959, at *18 (S.D.N.Y. Jan. 2, 2013) (internal
quotation marks omitted).
Having considered Plaintiffs’ claims of procedural deficiencies and found them to be
without merit, the Court now turns to Plaintiffs’ claims of substantive errors.
b. Substantive Adequacy
In reviewing for substantive errors, courts “examine whether the IEP was substantively
adequate, namely, whether it was reasonably calculated to enable the child to receive educational
benefits. Substantive inadequacy automatically entitles the parents to reimbursement.” R.E.,

The IHO addressed the merits of the extra help plan only after “not[ing] that extra help,
although entered on [S.B.’s] IEP, could not be considered a special education service.” (IHO
Op. 65.)
19

25

694 F.3d at 190 (alteration, citations, and internal quotation marks omitted).20 As noted above, a
district is not required “to provide the very best educational opportunities and services possible,
as the purpose of the IDEA is ‘more to open the door of public education to handicapped
children on appropriate terms than to guarantee any particular level of education once inside.’”
J.C. ex rel. C. v. New Fairfield Bd. of Educ., No. 08-CV-1591, 2011 WL 1322563, at *19 (D.
Conn. Mar. 31, 2011) (quoting Rowley, 458 U.S. at 192); see also C.H. v. Goshen Cent. Sch.
Dist., No. 11-CV-6933, 2013 WL 1285387, at *8 (S.D.N.Y. Mar. 28, 2013) (noting that an IEP
“need only provide the child with a ‘basic floor of opportunity’” (quoting Rowley, 458 U.S. at
201)). Additionally, the “special education and related services must be provided in the least
restrictive setting consistent with a child’s needs.” Walczak, 142 F.3d at 122.
Plaintiffs argue that the 2011-12 IEPs were substantively inadequate because: (a) the
CSE did not add individual counseling services and did not conduct an FBA; and (b) the District
improperly denied Plaintiffs’ request for a second resource room. (See Pls.’ Mem. 12–14.)
As to the first claim, Plaintiffs contend that “the CSE did not increase S[.]B[.]’s services
to include individual counseling[,] nor did it conduct an FBA to develop a BIP . . . .” (Id. at 12
(citation omitted).) The record, as noted, supports the IHO’s decision to credit Lovallo’s
testimony that an FBA was not warranted prior to spring 2012. (See IHO Op. 66.) Lovallo
specifically testified that S.B.’s work avoidance was not consistent earlier in the 2011-12 school
year, (see Tr. 480, 986–87), and the testimony of other educators corroborates this view.21 For

It bears noting that “[b]ecause administrative agencies have special expertise in making
judgments concerning student progress, deference is particularly important when assessing an
IEP’s substantive adequacy.” Cerra, 427 F.3d at 195.
20

Plaintiffs argue that “Lovallo testified that she began to see a decrease in S[.]B[.]’s
social/emotional functioning in January 2012 . . . .” (Pls.’ Mem. 8 (citing Tr. 455).) However,
that Lovallo noticed some “change” in S.B.’s social-emotional-behavioral functioning as of
21

26

example, Nedell described that as of January 2012, S.B.’s “progress and performance w[ere]
strong enough that [an FBA] wasn’t something that [the District] considered doing.” (Id. at 796–
97.) McNulty similarly testified that that S.B.’s performance showed “that [he] was learning”
during this time. (Id. at 221.) In addition, she explained that “th[e] areas of concern were being
worked on through S.[B.]’s direct support with the special education teacher and his counseling
services.” (Id.)
The record also refutes Plaintiffs’ argument with respect to individual counseling, as
prior to the third quarter Lovallo “had been seeing S.[B.] in an individual setting as needed,”
which became “formal and more regular” after the recommendation at the April 2012 CSE
meeting. (Id. at 484; see also J-6.) Lovallo testified that individual counseling as a direct service
was not necessary before the 2011-12 school year because “S.[B.] was progressing in a
satisfactory manner at the end of ninth grade,” and “his goals could be achieved in a group
setting.” (Tr. 448.) Nevertheless, over the course of tenth grade S.B. did, in fact, receive schoolbased counseling both in a group format and on an individual basis. (See id. at 484–85.)
According to Lovallo, the “counseling goals that he . . . had were appropriate” at that time. (Id.
at 485.)
As a second alleged substantive error, Plaintiffs assert that “the District refused to
consider [their] request for a second resource room.” (Pls.’ Mem. 13.) However, the record not
only makes clear that the District did consider that request, (see, e.g., Tr. 463–64; id. at 2302–

January 2012, (Tr. 455; see also id. at 453), by no means suggests that she observed any
interference with his ability to access his education. Plaintiffs’ implication notwithstanding, (see
Pls.’ Mem. 8 (asserting that Lovallo’s observations occurred “months before declining to
perform an FBA in March 2012”)), Lovallo’s testimony is not inconsistent with her decision
against conducting an FBA in March 2012, see M.W., 725 F.3d at 140 (“The IDEA only requires
a school district to ‘consider the use of positive behavioral interventions and supports, and other
strategies’ when a child’s behavior impedes learning.” (quoting A.C., 553 F.3d at 172)).
27

05), but also supports the IHO’s determination to “credit the [CSE’s] decision not to add a
second resource room,” (IHO Op. 64; see also SRO Op. 15 (adopting the IHO’s finding that “the
[D]istrict reasonably declined to recommend additional resource room services”)). According to
Lovallo, the CSE felt that a second resource room would not be advantageous because “at the
time [S.B.] was already spending his free periods in the resource room . . . and he was not using
that time productively.” (Tr. 464.) The April 2012 IEP notes LoFaso’s concern that the addition
of a second resource room would “not address the underlying issues that [we]re overwhelming
[S.B.],” since S.B. already came to the resource room “several times a day” but was “not
productive.” (J-6.) It was decided, instead, “that both his English and Global Studies teachers
would offer S.[B.] consistent extra help.” (Tr. 465.) Even if the Court “were inclined to disagree
with the IHO’s conclusions regarding the appropriateness of [an additional resource room],
questions of class size, teaching methodologies[,] and educational environments involve exactly
the types of educational policy issues that require district court deference to state administrative
agencies.” N.Y.C. Dep’t of Educ. v. V.S., No. 10-CV-5120, 2011 WL 3273922, at *13 (E.D.N.Y.
July 29, 2011); see also Mr. & Mrs. P., 546 F.3d at 118 (“Independent judicial review ‘is by no
means an invitation to the courts to substitute their own notions of sound educational policy for
those of the school authorities they review.’” (quoting Rowley, 458 U.S. at 206)).22

22

In further support of their argument that the 2011-12 IEPs were not reasonably
calculated to confer educational benefit on S.B., Plaintiffs argue that Egnal’s report and
testimony are entitled to deference. (See Pls.’ Mem. 13–14.) However, Egnal only evaluated
S.B. as of May and June 2012, (see J-22), months after the IEPs at issue here, (see J-3; J-4; J-5;
J-6). Because an “IEP must be evaluated prospectively as of the time of its drafting,” R.E., 694
F.3d at 186; see also C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 79 (2d Cir. 2014)
(explaining that an “IEP must be evaluated prospectively, without recourse to retrospective
testimony”), Plaintiffs’ reliance on Egnal’s evaluations in challenging the adequacy of an IEP
that predated them is misplaced.
28

Moreover, as noted by the IHO, Plaintiffs offered no sound pedagogical justification for a
second resource room. (See IHO Op. 64 (“I credit the committee decision not to add a second
resource room, for which no sound educational reason was advanced.”); id. at 65 (“[T]here was
no educational reason provided to the CSE [in support of the proposal for a second resource
room].”).) Indeed, the only reason proffered was a hope that a different resource teacher would
be helpful to S.B., not a belief that an additional resource room necessarily would be beneficial.
(See Tr. 2134, 2215–16.) Any dissatisfaction with LoFaso, however, was never expressed to the
District prior to this case, (see id. at 2418–19; cf. IHO Op. 65 (“[T]here was no evidence that this
dissatisfaction was ever communicated to the [D]istrict, other than a single mention by [J.B.]
to . . . Lovallo . . . .”)), such that the CSE cannot be charged with failing to act, see R.E., 694
F.3d at 186 (holding that an IEP must be evaluated “prospectively as of the time of its drafting”).
Having reviewed the record, the Court finds substantial evidence confirms the SRO’s
determination that the District provided S.B. a FAPE for the 2011-12 school year.
2. Whether the IEPs Offered S.B. a FAPE for the 2012-13 School Year
The SRO also affirmed the IHO’s conclusion that the District designed and implemented
appropriate IEPs throughout the 2012-13 school year. (SRO Op. 14 (citing IHO Op. 63–72).)
Specifically, the IHO found that: (a) an FBA/BIP had been developed along with new goals
concerning avoidant behaviors and dealing with stress, and J.B. agreed with the 2012-13
program as recommended at the June 2012 CSE meeting, (IHO Op. 68); (b) the CSE adopted a
number of recommendations made by Egnal, (id.); and (c) the CSE’s recommendation for special
classes, with a 15:1 student-to-teacher ratio, was appropriate and consistent with Egnal’s
recommendation for a small, structured class setting, (id. at 68–69). The SRO also addressed in
greater detail Plaintiffs’ claim that the District failed to implement the BIP during the 2012-13

29

school year, determining that: (a) the District did implement the BIP for the portion of the
school year that S.B. attended the public school; (b) the District sought Plaintiffs’ assistance in
implementing the BIP during that time, but they were not amenable to participating in the
process; (c) Lovallo reviewed the BIP with S.B.’s teachers and guidance counselor; (d) the 201213 BIP was amended from the year prior, with minor changes made regarding strategies and
interventions for S.B.; and (e) though Plaintiffs were not receptive, Lovallo did seek to involve
them in developing appropriate rewards for S.B. (SRO Op. 15–16.)
a. Procedural Adequacy
Plaintiffs argue that the SRO wrongly affirmed the IHO’s “finding that the 2012-13
FBA/BIP was appropriately written and implemented during [S.B.’s eleventh grade] year.”
(Pls.’ Mem. 14 (citing SRO Op. 15).)
As an initial matter, ample evidence supports the SRO’s conclusion “that the [D]istrict
implemented [S.B.’s] BIP for the 2012-13 school year at the start of said school year.” (SRO
Op. 15.) Lovallo testified that the BIP was implemented during the five weeks S.B. attended
school in the District in fall 2012, (Tr. 521–23, 1025), and the fact she could not recall the exact
date “specifically offhand” does not undermine her testimony, (id. at 1025).23 J.B.’s own
testimony corroborates this point, indicating that Lovallo contacted her at the start of the school
year with regard to an appropriate reward for S.B. for use in the BIP and thereby suggesting that
Plaintiffs understood the plan to have been implemented. (See id. at 2363–64 (testifying she
knew the BIP “was started” because “Lovallo called . . . at the beginning of the year about it”).)

Plaintiffs assert that “Lovallo could not recall when the BIP was implemented.” (Pls.’
Mem. 14 (citing Tr. 953).) However, the cited page from her testimony unrelatedly concerns
Lovallo’s inability to “recall the specific reason as to why the CSE meeting was called” on
January 31, 2012. (Tr. 953; cf. J-5.)
23

30

The record also contradicts Plaintiffs’ contention that the revised 2012-13 BIP was
inappropriate. As discussed by the SRO, (see SRO Op. 15), Lovallo reviewed the BIP with
S.B.’s then-current English, mathematics, Latin, science, and resource room teachers, as well as
with his guidance counselor, at the start of his eleventh grade year, (see Tr. 518–21; D-45).24
The plan had been amended from the one developed at the end of the previous school year, with
what Lovallo considered “minor changes . . . in terms of strategies and interventions.” (Tr. 521;
compare D-6, with J-21.) The SRO articulated the specific adjustments that were made in order
to meet S.B.’s needs at the beginning of the 2012-13 school year. (SRO Op. 16 n.14 (citing Tr.
526–33).) These changes included: elimination of the “work plan” in an effort not to draw
attention to S.B. that might make him uncomfortable in his general education classes, based on
the input of his then-current teachers, (Tr. 527); clarifying the system of rewards whereby S.B.’s
special education teacher would monitor the points and Plaintiffs would implement the rewards,
(id. at 528–29); modification of the “time away” plan to reflect that S.B. spent most of his time
with the school psychologist and his classroom teachers, rather than with the assistant principal
or school counselor, and that the strategy “was more appropriate to utilize . . . in school,” (id. at
531–32); and the addition of outside providers as persons responsible for implementing the

Plaintiffs charge that Lovallo “did not recall consulting with Jilton” about the 2012-13
BIP, (Pls.’ Mem. 14 (citing Tr. 975)), but, again, the provided citation has no bearing on their
argument, (see Tr. 975 (discussing LoFaso’s charting of S.B.’s behaviors in spring 2012)). In
their reply, Plaintiffs cite to a different part of the transcript, (see Pls.’ Reply 6 (citing Tr. 1047)),
which merely indicates that Lovallo did not “recall specifically” whether she again consulted
with Jilton when she revised the BIP at the beginning the 2012-13 school year, (Tr. 1047–48).
Yet, various portions of Lovallo’s testimony suggest that the revised BIP reflected Jilton’s input.
(See, e.g., id. at 532 (noting that the BIP was amended to reflect that Jilton “was also working
with [S.B.] on [certain matters]”); id. at 1011 (testifying that she spoke with Jilton about the use
of rewards “to help create some buy in [to the BIP]”).)
24

31

sections involving “psychoeducation,” “contingency management,” and “problem solving,” (id.
at 532–33).
As to the matter of rewards, Plaintiffs argue that it was inappropriate for the District to
ask them to fashion and implement a system of rewards at home. (See Pls.’ Mem. 14–15; Pls.’
Reply 6.) While Plaintiffs may have struggled with this strategy (but offered no alternative), (see
Tr. 528–29, 2364–65), their disagreement with the methodology does not constitute a procedural
violation, see S.W. v. N.Y. Dep’t of Educ., 92 F. Supp. 3d 143, 157 (S.D.N.Y. 2015) (“The IDEA
grants parents the right to provide input, not to have veto power.”); P.K. ex rel. P.K. v. Bedford
Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) (“A professional disagreement is not
an IDEA violation.”); Sch. For Language & Commc’n Dev. v. N.Y. State Dep’t of Educ., No. 02CV-269, 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) (“Meaningful participation does
not require deferral to parent choice.”).25 Indeed, notwithstanding Plaintiffs’ unreceptiveness “to
the [D]istrict’s attempt to refine [S.B.’s] BIP and, thus, reward his success in school,” (SRO Op.
16 (citing Tr. 2364); see also Tr. 2364 (testimony by J.B. that she told Lovallo it was “silly” to
ask Plaintiffs to come up with a reward)), Lovallo’s testimony offers pedagogical justification for
the rewards system, (see Tr. 529, 1011), which the SRO credited in finding the 2012-13 BIP
adequately implemented, (see SRO Op. 16). This the Court will not second guess. See Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003) (“[T]he sufficiency of goals and

Moreover, notwithstanding Plaintiffs’ implication to contrary, (see Pls.’ Mem. 14–15),
the District did not leave the implementation of the rewards system to Plaintiffs alone, as, for
example, Lovallo met with “S.[B.] for a counseling session to talk about it, to ascertain his
resistance,” and “to brainstorm with [him]” about how to help, (Tr. 1013).
25

32

strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the
expertise of the administrative officers.”).26
Plaintiffs also allege that “the IEP and the revised BIP are silent as to monitoring
progress of the frequency, duration[,] and intensity of the behavioral interventions.” (Pls.’ Mem.
14 (citing J-7; D-6).) That contention, however, is simply inaccurate. The BIP expressly
identifies that the “intervention will be measured through the use of behavior report cards and
grades,” designates the persons responsible for the collection of that data (i.e. S.B.’s special
education teacher along with his regular education teachers and counselor), and sets out a
schedule to review the plan. (See D-6.) While the information provided is somewhat cursory
and unquantified, any such technical defect does not render S.B.’s 2012-13 IEP procedurally
inadequate. See K.M. v. N.Y.C. Dep’t of Educ., No. 13-CV-7719, 2015 WL 1442415, at *15
(S.D.N.Y. Mar. 30, 2015) (finding that an allegedly inadequate BIP did not result in the denial of
a FAPE because, “although th[e] document did not contain the required data on the ‘frequency,
duration, [and] intensity’ of [the student’s] interfering behaviors, it clearly went beyond simply
listing behaviors and strategies in a non-differentiated manner” (second alteration in original)
(citation and some internal quotation marks omitted) (quoting NYCRR tit. 8 § 200.22(b)(4)(i))).
Plaintiffs further complain that “the Behavior Report Cards are not consistently completed[,] in
violation of . . . § 200.22(b)(5).” (Pls.’ Mem. 14 (footnote omitted) (citing P-O).) Plaintiffs,
however, provide no legal support for this leap from seemingly incomplete progress reports to
failed monitoring. Cf. NYCRR tit. 8 § 200.22(b)(5) (“The results of the progress monitoring [of
a student’s BIP] shall be documented . . . .”). Moreover, they wholly ignore the (not unlikely)

26

The Court does pause to note that the rewards system is only one of a number of
strategies set forth in the BIP to help address S.B.’s behavior. (See J-21; D-6.)
33

possibility that these blank spaces may reflect S.B.’s absences or that a particular class did not
convene on a given day. In fact, one of the Behavior Report Cards explicitly notes S.B. was
absent on October 1, 2012, (see P-O), and Lovallo testified that his “attendance was not stellar”
at the start of the 2012-13 school year, (Tr. 518).
Aside from this challenge to the appropriateness of the 2012-13 BIP, Plaintiffs assert that
“[the District] suggested that S[.]B[.] enroll in a special class [for English], but J[.]B[.] needed
more information.” (Pls.’ Mem. 15 (citing, inter alia, Tr. 183; id. at 421; id. at 2509; id. at
2560).) Not only is this statement ambiguous as to which CSE meeting it refers, but also the
testimony cited does not support the proposition. (See Tr. 183 (testimony by McNulty regarding
speech and language therapy services in spring 2010); id. at 421 (testimony by Hayes about
behavioral data presented at the June 2012 CSE meeting); id. at 2509 (index for J.B.’s
testimony); id. at 2560 (testimony by LePage that she and J.B. visited the special class on
December 2, 2012).) Plaintiffs more specifically contend that “[the District] did not provide
Plaintiffs with an opportunity to visit the [s]pecial [c]lass” during spring 2012, and, as a result,
“they rejected it.” (Pls.’ Mem. 15 (citing, inter alia, Tr. 2359; id. at 2415; id. at 2558).) Yet, this
distorts the record, which plainly shows that the CSE discussed the special English class at the
meeting on April 13, 2012 (Friday), (see J-6), and on the morning of April 18, 2012
(Wednesday), J.B. wrote to Hayes to decline placement, (see D-16; cf. Tr. 256). Plaintiffs offer
no evidence that they requested—let alone were denied—an opportunity to visit the special class
within that short timeframe. (Cf. J-6 (noting only that S.B. and J.B. “will consider whether or
not to switch to [the] special class”); J-7 (including no mention of a special class for English).)
Quite the opposite, Plaintiffs once again cite testimony not relevant to their argument. (See Tr.
2359 (testimony by J.B. regarding an email exchange in September 2012); id. at 2415 (testimony

34

by J.B. regarding her communication with LoFaso after the CSE meeting in January 2012); id. at
2558 (testimony by LePage that the CSE would not consider Egnal’s input about the special
class that she had not visited).)
After placement in a special class was again discussed at the October 2012 CSE meeting,
(see J-8), J.B. was provided an opportunity to visit the classroom with LePage and Hayes, (see
Tr. 271, 2372–73, 2481–82). Thereafter, the only feedback J.B. provided Hayes was that S.B.
would never return to the public school. (See id. at 271; cf. J-8 (noting “it was the family’s
intention to have him continue [at Westfield]”).)27 In their reply, Plaintiffs assert that “[J.B.]
determined it was inappropriate for S[.]B[.] because [he] would still have to navigate the high
school hallways for the rest of his classes, which had historically overwhelmed him.” (Pls.’
Reply 6.) However, the IHO found these observations “irrelevant” to the sufficiency of S.B.’s
IEP because Plaintiffs had removed S.B. from the District prior to that visit. (IHO Op. 70.)
In light of this record, the Court cannot find that a procedural violation took place, much
less one that “resulted in the IEP’s substantive inadequacy or affected the decision-making
process.” M.W., 725 F.3d at 139.
b. Substantive Adequacy
Plaintiffs challenge the SRO’s decision that the IHO correctly found the 2012-13 IEP to
be appropriate. (See Pls.’ Mem. 16–17.) Claiming substantive deficiencies, Plaintiffs argue that

27

J.B. testified that at no time during or after the visit did she state that S.B. would never
return to the District. (Tr. 2373–74.) However, in her detailed decision, the IHO found that
“[t]here was no credible evidence that [Plaintiffs] were at any time considering re-enrolling
[S.B.] in [the public school].” (IHO Op. 70.) The Court defers to this credibility determination.
See M.H., 685 F.3d at 258 (“The IHO’s determination was based on his assessment of the
credibility of the witnesses testifying before him . . . . It was entitled to deference on that
basis.”); P.F. v. Bd. of Educ., No. 15-CV-507, 2016 WL 1181712, at *6 (S.D.N.Y. Mar. 25,
2016) (“[W]hen the hearing officer had [an] opportunity to see and hear witnesses, his or her
credibility determination is accorded deference.”).
35

the program offered by the District for S.B.’s eleventh grade year “was not sufficiently tailored
to his needs to enable him to progress and thus he regressed.” (Id. at 17 (citing, inter alia, Tr.
2106).)28
The record, however, belies this claim of regression. According to Hayes’ testimony,
S.B.’s teachers reported that he started eleventh grade “on a positive note” academically. (Tr.
269; see also id. at 270 (“[H]e seemed to be off to a good start.”).) At that time, S.B. expressed
that he had a better plan to negotiate the school curriculum. (See id. at 269–70.) While Plaintiffs
claim that S.B. “was afraid of his English teacher Lewis,” (Pls.’ Mem. 16 (citing Tr. 2513)), this
bare assertion not only is unsupported by evidence, (see P-FFF (noting J.B.’s concerns about
S.B.’s ability to successfully complete the English course)), but also is contradicted by S.B.’s
statements to Lovallo that he thought Lewis was a “good teacher” who “explained things good,”
even as he anticipated that the course would be difficult, (P-Q).29 Moreover, the District had
expanded the program modification of extended time for S.B.’s long-term assignments to other
core area subjects in order to reduce pressure on S.B. and lessen his anxiety. (See Tr. 266; J-7.)
There is some conflicting testimony regarding S.B.’s social and emotional functioning at
the start of his eleventh grade year. On one hand, at the October 2012 CSE meeting Jilton noted
that “[S.B.’s] anxiety remained high,” “he was still very vulnerable to depression,” and “[h]e still

In reality, the testimony cited here discusses Jilton’s use of cognitive behavior therapy
to address S.B.’s anxiety. (See Tr. 2104–06.) This is a far cry from evidence supporting
Plaintiffs’ claim that “[a]t [the public school], S[.]B[.] went through failure, despondency,
confusion, anxiety[,] and depression.” (Pls.’ Mem. 16–17 (citing, inter alia, Tr. 2106).)
28

29

Plaintiffs yet again cite to testimony wholly unconnected to the stated proposition.
(Compare Pls.’ Mem. 16 (“He was afraid of his English teacher Lewis and was not going to see
him for extra help . . . . J[.]B[.] did not believe Lewis went to S[.]B[.]’s resource room to help
S[.]B[.]”), with Tr. 2294 (discussing J.B.’s and S.B.’s participation in the June 2011 CSE
meeting), and id. at 2296 (discussing S.B.’s tenth grade year), and id. at 2513 (index for J.B.’s
testimony).)
36

had not made social progress with any friends.” (Tr. 2151). On the other hand, Lovallo testified
that “generally [S.B.] was in better spirits than he had been the previous year.” (Id. at 518; see
also id. (“[J]ust his mood, his affect was more positive.”).) According to Hayes’ testimony,
“Lovallo reported that S.[B.] was starting off in a good place,” (id. at 270), with respect to the
individual counseling that had been added to S.B.’s 2012-13 IEP to address his increased
anxiousness and formalize the support she had given at the end of the previous school year, (see
id. at 264; see also id. at 518 (testifying that “[h]e seemed more available for counseling” and
was better able to engage with Lovallo)). Here, the Court defers to the IHO’s determination to
“credit . . . Lovallo’s opinion that the [District] provided the appropriate level [of] support for
[S.B.],” (IHO Op. 68), as it is not for a federal court to “cho[ose] between the views of
conflicting experts on a controversial issue of educational policy. . . in direct contradiction of the
opinions of state administrative officers who had heard the same evidence,” Grim, 346 F.3d at
383; see also Y.S. v. N.Y.C. Dep’t of Educ., No. 12-CV-2590, 2013 WL 5722793, at *9
(S.D.N.Y. Sept. 24, 2013) (declining “to choose between conflicting opinions of educational
experts” and instead “defer[ring] to the [SRO’s] conclusion”).
In support of their challenge to the SRO’s determination regarding the 2012-13 IEP,
Plaintiffs re-emphasize Egnal’s reports and testimony. (Pls.’ Mem. 16.)30 This reliance,

Plaintiffs argue that the testimony and opinions of both Egnal and Jilton “support the
conclusion that the IEP was not sufficiently tailored to S[.]B[.]’s needs to enable him to
progress.” (Pls.’ Mem. 16 (citing Tr. 4043).) No such page for the impartial hearing transcript
exists, leaving the Court unclear as to the existence of evidence to corroborate this contention.
That confusion is not helped by the fact that most of the citations in this section of Plaintiffs’
brief do not actually support the propositions for which they are put forth, (see, e.g., Tr. 1871
(index for Bryant’s testimony); id. at 1972 (describing S.B.’s final report card from ninth grade)),
an all-too-common trend throughout their papers.
In any event, it bears noting that Jilton conceded she was not familiar with IEPs in
general and had no experience with a 15:1 English class. (See Tr. 2222–23.) Egnal’s similar
lack of familiarity is discussed below.
30

37

however, is misguided. For one, the District adopted a number of the recommendations in
Egnal’s 2012 report, including speech and language therapy, access to a word
processor/computer, and flexible testing scheduling. (See Tr. 270–73, 2370; compare J-8, with J22.) Additionally, as the IHO noted, (see IHO Op. 68–69), the October 2012 CSE meeting
recommendation for special classes in English and Social Studies, with 15:1+1 student-toteacher-to-aide ratios, (see J-22), was consistent with Egnal’s recommendation for a “small,
structured, nurturing setting with a high teacher/pupil ratio,” (see J-8).31 Yet in spite of this,
Plaintiffs underscore that Egnal determined the 2012-13 IEP to be not appropriate. (See Pls.’
Mem. 16; Pls.’ Reply 5–6.) Though she testified that the 15:1+1 classes would be unsuitable due
to its size, (see Tr. 2010), Egnal never expressed that opinion at a CSE meeting, (see IHO Op.
69), nor did she identify a maximum student-to-teacher ratio that would be appropriate, (see Tr.
1940). Moreover, Egnal conceded not only that she had never visited the special classes
recommended by the District, (see id. at 2010), but also that she did not “have a full
understanding” of the composition of a 15:1+1 class, (id. at 2009; see also id. at 2010–11). In
defending this lack of familiarity, she merely asserted that she knew “how a public school
works,” “hav[ing] seen enough of them.” (Id. at 2067). The record thereby supports the IHO’s
discounting of her testimony on the basis that she “preferr[ed] to base her statement that the
[D]istrict couldn’t provide a placement for [S.B.] at the level he needed on her feeling about all
public schools.” (IHO Op. 69.)
Egnal also testified that the 5:1 resource room was not suitable for S.B. as “too
fractionated,” (Tr. 2035), and not part of “an immersion program,” (id. at 2013). However, she

The IHO further noted that Egnal’s “report did not specify a small school, nor was
there any exclusion in the report from a setting within a larger school.” (IHO Op. 69; cf. J-22.)
31

38

never expressed that opinion at the October 2012 CSE meeting, (see IHO Op. 69), and, to
reiterate, evaluation of the IEP is limited to what was before the CSE at that time, see R.E., 694
F.3d at 186; R.B. v. N.Y.C. Dep’t of Educ., No. 12-CV-3763, 2013 WL 5438605, at *11
(S.D.N.Y. Sept. 27, 2013) (“[B]ecause this testimony was not available at the time of the CSE
meeting, it is inappropriate for the [c]ourt to consider it at this time.”), aff’d, 589 F. App’x 572
(2d Cir. 2014). Such testimony thus carries no weight here.
Based on the record, the Court finds the evidence amply supports the SRO’s conclusion
that the 2012-13 IEP was substantively adequate. It thereby reaffirms that the District offered
S.B. a FAPE for the 2012-13 school year.
3. Whether the IEPs Offered S.B. a FAPE for the 2013-14 School Year
Lastly, the SRO affirmed the IHO’s determination that the District offered S.B. a FAPE
for the 2013-14 school year. (See SRO Op. 16.) The SRO adopted “the findings and
conclusions of the IHO relating to the design and implementation of [S.B.’s] IEPs,” (id. at 15),
which included: (a) the new information before the CSE, in the form of progress reports from
Westfield, updated evaluations performed by the District, and Egnal’s updated testing, did not
warrant a change to S.B.’s program, (IHO Op. 70); and (b) the 2013-14 IEP goals for S.B. were
appropriate, based upon the reevaluations performed by the District, (id. at 71).
a. Procedural Adequacy
Plaintiffs argue that “[the District] significantly impeded [their] opportunity to participate
in the decision-making process” by failing to timely conduct reevaluations of S.B. at the end of
the 2012-13 school year. (Pls.’ Mem. 17.) The IHO determined, and the SRO agreed, that this
issue was not raised in Plaintiffs’ due process complaint, (see IHO Op. 71; SRO Op. 14), which
precludes review by this Court, see, e.g., B.M. v. N.Y.C. Dep’t of Educ., No. 12-CV-3247, 2013

39

WL 1972144, at *6 (S.D.N.Y. May 14, 2013) (“[A] parent’s failure to raise an IDEA claim in his
or her due process complaint deprives a court of subject-matter jurisdiction to address the
claim.”), aff’d, 569 F. App’x 57 (2d Cir. 2014); B.P. v. N.Y.C. Dep’t of Educ., 841 F. Supp. 2d
605, 611 (E.D.N.Y. 2012) (“The scope of the inquiry of the IHO, and therefore the SRO and
th[e] [c]ourt, is limited to matters either raised in the [p]laintiffs’ impartial hearing request or
agreed to by [the] [d]efendant.”).32 Plaintiffs do not dispute this point here. Rather, in their
reply, as in their appeal of the IHO’s decision, (see SRO Op. 14), Plaintiffs seek to overcome this
jurisdictional hurdle by arguing that “[t]he District opened the door to the issue of late
evaluations,” so they “cannot be precluded from raising that issue on appeal,” (Pls.’ Reply 6).
As recognized by the SRO, “the [D]istrict solicited testimony on this issue as background
information relevant to the provision of [a] FAPE . . . during the 2013-14 school year . . . .”
(SRO Op. 14; cf. Tr. 1538–40; id. at 1544–46.) This Court similarly finds that the District did
not “open[] the door” to Plaintiffs’ claim because “at the impartial hearing [it] merely offered
background and foundation testimony about the [late evaluations].” J.C.S. v. Blind Brook-Rye
Union Free Sch. Dist., No. 12-CV-2896, 2013 WL 3975942, at *9 (S.D.N.Y. Aug. 5, 2013); see
also B.M., 569 F. App’x at 59 (finding that the district had not “opened the door” because “the
[d]istrict’s only mention of the [issue] at the hearing came during foundational questions, not in
support of an affirmative, substantive argument”); A.M. ex rel. Y.N. v. N.Y.C. Dep’t of Educ., 964
F. Supp. 2d 270, 283–84 (S.D.N.Y. 2013) (concluding that the defendant had not opened the

The IDEA provides that the party requesting a due process hearing “shall not be
allowed to raise issues at the due process hearing that were not raised in the notice . . . unless the
other party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B). Along similar lines, “[a]ny party
aggrieved by the findings and decision made” in a due process hearing then has “the right to
bring a civil action with respect to the [due process] complaint presented.” 20 U.S.C.
§ 1415(i)(2)(A) (emphasis added).
32

40

door “given the isolated references to the [issue] in a lengthy hearing and the lack of any
indication that the [defendant] raised the issue to obtain a strategic advantage”) cf. P.G. v. N.Y.C.
Dep’t of Educ., 959 F. Supp. 2d 499, 515 (S.D.N.Y. 2013) (noting the Second Circuit has found
that a defendant “opened the door . . . when it raised the issue in its opening argument and
elicited testimony about it from one of its witnesses on direct examination” (citing M.H., 685
F.3d at 250–51)). Therefore, the Court lacks jurisdiction to consider this alleged procedural
violation.33
b. Substantive Adequacy
Plaintiffs contend that the 2013-14 IEP was substantively inadequate on the basis that it
“did not significantly change” from prior programs, despite S.B.’s claimed progress at Westfield
during the 2012-13 school year. (Pls.’ Mem. 17–18 (citing J-8; J-40).) There is no dispute that
the recommended services, goals, modifications, and testing accommodations contained in the
August 2013 IEP remained the same, with the exception of removing the Social Studies special
class and revising speech goals. (See SRO Op. 4 (citing J-40); compare J-40, with J-8.)34 The
IHO found the 2013-14 IEP appropriate, having concluded that the information presented to the
CSE at its June and August 2013 meetings did not warrant additional changes. (See IHO Op.
70.) The SRO then adopted this conclusion. (SRO Op. 15.)

In any event, the Court shares the SRO’s view that the evidence supports the IHO’s
determination that Plaintiffs were at least partly responsible for the delay in the evaluations of
S.B. (See SRO Op. 14 (citing IHO Op. 71); cf. J-31 (noting that “[Plaintiffs] did not want [S.B.]
to miss school for reevaluation testing”); P-QQ (explaining that J.B. was “trying to delay any
testing so it won’t interfere with [S.B.’s] school work or Regents, etc.”).)
33

Plaintiffs conclusorily allege that the “revised speech goals . . . were inappropriate
because they were not clearly defined or measured.” (Pls.’ Mem. 18.) This bare allegation
warrants no more than footnote, as the August 2013 IEP provides a clear definition of the
speech/language goals along with criteria, methods, and a schedule to measure S.B.’s progress.
(See J-40.)
34

41

Even beyond the substantial deference owed to the state administrative officers on this
question of educational policy, see Cerra, 427 F.3d at 191, the Court notes that this decision
finds ample support in the record. Heldman and J.B. testified that S.B. underwent positive
changes while at Westfield, (see, e.g., Tr. 1396; id. at 2374; id. at 2378–81; id. at 2390–91), but
Plaintiffs’ claims of “meaningful progress,” (Pls.’ Mem. 18), are controverted by other testimony
and reports, (see, e.g., Tr. 1400; id. at 1652; P-OO; P-DDD). For example, Anderson testified
that S.B.’s teachers at Westfield reported “concerns related to his completion of homework
assignments, his ability to participate and communicate in class,” and his difficulty with writing
and mental arithmetic. (Tr. 1652.)35 Based on that information, her testing of S.B., an updated
evaluation from Egnal, and a report from S.B.’s treating psychiatrist, Anderson determined that
the counseling goals of the 2013-14 IEP appropriately related to S.B.’s functioning and did not
need to be changed. (See id. at 1652–53.) Hayes similarly testified that, while J.B. “verbally
reported” improvement at the June 2013 CSE meeting, (id. at 1559), the information provided
“didn’t substantiate any changes” in S.B.’s program, (id. at 1560).
Accordingly, like both the IHO and the SRO, the Court finds no substantive errors in
S.B.’s 2013-14 IEP. The evidence supports the determination that the District offered S.B. a
FAPE for the 2013-14 school year.36

35

Anderson evaluated S.B. in June 2013, having been told that Plaintiffs requested a
different evaluator than Lovallo. (See Tr. 1633–1634; J-35.)
36

Because this Court agrees with the SRO that the 2011-12, 2012-13, and 2013-14 IEPs
were not procedurally or substantively inadequate, it need not address whether Westfield was an
appropriate placement or whether the equities favor tuition reimbursement. See M.C., 226 F.3d
at 66 (“Only if a court determines that a challenged IEP was inadequate should it proceed to the
second question.”); M.H. v. N.Y.C. Dep’t of Educ., No. 10-CV-1042, 2011 WL 609880, at *12
(S.D.N.Y. Feb. 16, 2011) (affirming “the SRO[’]s decision as to the appropriateness of the IEP”
and thus declining “to consider the arguments relating to whether [the private school]
constitute[d] an appropriate placement and whether the equities favor reimbursement”).
42

III. Conclusion
For the foregoing reasons, Plaintiffs ' Motion for Summary Judgment is denied. The
Clerk of Court is respectfully requested to terminate the pending Motion . (Dkt. No. 55.) 37
SO ORDERED.
DATED:

September l!i_, 2016
White Plains, New York

K NNETH M. KARAS
UNITED STATES DISTRICT JUDGE

37

In light of this ruling, the Parties are to inform the Court within one week as to why
judgment should not be entered in favor of the District.

43