Y.N. et al v. Board Of Education Of The Harrison Central School District

Filing 23

OPINION AND ORDER re: 11 MOTION for Summary Judgment filed by Y.N., Sh. N., Y. N., Sh.N. For the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No 11), enter judgment for Defendant, and close this case. (Signed by Judge Kenneth M. Karas on 9/25/2018) (rro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Y.N. and SH. N., individually and on behalf
of S.N., a child with a disability,
Plaintiffs,
No. 17-CV-4356 (KMK)
v.
OPINION & ORDER
BOARD OF EDUCATION OF THE
HARRISON CENTRAL SCHOOL
DISTRICT,
Defendant.

Appearances:
Diana K. Gersten, Esq.
Jesse C. Cutler, Esq.
Linda A. Goldman, Esq.
Skyer, Castro, Foley & Gersten
New York, NY
Counsel for Plaintiffs
Mark. C. Rushfield, Esq.
Shaw, Perelson, May & Lambert, LLP
Poughkeepsie, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Parents Y.N. and Sh. N. (“Plaintiffs”) brought this Action individually and on behalf of
their daughter, S.N., against the Board of Education of the Harrison Central School District
(“Defendant” or “the District”) under the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400 et seq. (See Compl. (Dkt. No. 1).) The dispute arises out of the decisions of
the Independent Hearing Officer (“IHO”) and the State Review Officer (“SRO”) who
adjudicated Plaintiffs’ administrative claims for relief arising out of Defendant’s alleged failure

to provide S.N. a free and appropriate public education (“FAPE”) during the 2015-2016 school
year. Before the Court is Plaintiffs’ Motion for Summary Judgment. (Notice of Mot. (Dkt. No.
11).) For the following reasons, the Motion is denied.
I. Background
A. Factual Background 1
S.N. was born on December 16, 2005. (IHO Transcript (“Tr.”) 167.) She attended
Solomon Schecter School, a private, general education Jewish day school in White Plains, New
York, for kindergarten through second grade. (Id. at 1012, 1068.) While there, Plaintiffs
believed S.N. was “falling behind” in the classroom curriculum. (Id. at 1012–13.) Specifically,
due to her “inconsistent” academic functioning and her difficulties with reading comprehension
and hearing, in spring of 2013, while she was in first grade, S.N. underwent a private
psychoeducational evaluation, (District Exhibits (“SD Ex.”) 7 at 51), and an audiological
evaluation, (SD Ex. 6 at 49; SD Ex. 8). As a result of these evaluations, S.N. was diagnosed with
a specific learning disorder with impairment in reading, attention deficit hyperactivity disorder,
unspecified anxiety disorder, (SD Ex. 7 at 62), and a central auditory processing disorder, (SD
Ex. 8 at 70). Therefore, during the 2013-2014 school year, the White Plains Central School
District, the district where Solomon Schecter was located, classified S.N. as having an “Other
Health Impairment,” a qualifying disability under the IDEA, see 34 C.F.R. § 300.8(a)(1), and
created an Individualized Education Plan (“IEP”) for her. (Parents’ Exhibits (“Pls.’ Ex.”) L-1.)

1

Because the Parties did not submit Rule 56.1 statements, the facts are drawn from the
certified administrative record, which was filed under seal. (Dkt. No. 22.) The record includes,
among other things, Plaintiffs’ exhibits, Defendant’s exhibits, the Parties’ correspondence and
pleadings before the IHO and SRO, and transcripts of the IHO hearing. The Court will cite to
these types of documents separately, even though they were filed all together in one document.
The Court will cite to the exhibits based on the page number given in the right-hand corner of the
page.
2

Specifically, the IEP recommended direct consultant teacher services and supplementary
accommodations in the classroom, as well as a specially designed separate reading class,
beginning in November 2013, and noted that S.N. needs to improve her skills in decoding,
reading comprehension, writing, and math. (Pls.’ Ex. L-1, L-4, L-8.)
However, Plaintiffs decided that S.N. would not return to Solomon Schechter after
second grade. (Tr. 1074.) In August 2014, they hired Dr. Laura Tagliareni (“Dr. Tagliareni”) to
conduct a neuropsychological evaluation of S.N. “to assess her cognitive, academic, and socialemotional functioning and to assist in ongoing educational and treatment planning.” (SD Ex. 13
at 88, 97.) After conducting several tests and clinical observations on four different occasions,
Dr. Tagliareni made several findings. First, she concluded that S.N. had “clear weaknesses” in
language processing, expressive language skills, and “rapid automatized naming and
comprehension skills,” which are “necessary . . . for the development of reading skills.” (Id. at
95.) Dr. Tagliareni also found that S.N. “meets criteria for ADHD, Combined Presentation.”
(Id.) Additionally, she concluded that S.N.’s “cognitive and academic profile is consistent with a
severe language based learning disorder,” including “criteria for Dyslexia as well as a Specific
Learning Disorder, with impairments in mathematics. (Id. at 96.) And, “[S.N.’s] weaknesses in
language skills and attention further impede her learning skills and academic performance,
warranting greater interventions.” (Id.) Dr. Tagliareni explained:
Even with the implementation of special education services, [S.N.] has failed to
make appropriate progress and is at risk for greater regression if she does not
receive a more appropriate special education program. These findings clearly
indicate the need for a special education placement with more intensive services.
She requires remediation in academic skills as well as attention and language skills.
(Id.) She also noted that S.N. was “experiencing symptoms anxiety” because of her perceived
academic failures. (Id.) Dr. Tagliareni therefore made six recommendations for S.N.: (1) she

3

“requires a small, full time special education program that provides her with the specialized
instruction and supports that she needs in order to make appropriate progress,” as “part of a
small, language-based, special education school;” (2) she “requires speech and language therapy
to address her expressive language and comprehension skills;” (3) she “should be given any
curriculum modification and aids available at her school that will help organize her,” including
special seating, frequent prompting, instructor monitoring of comprehension, reading test
instructions aloud, extended time, and encouraging her participation; (4) she should receive
individual psychotherapy, targeting her anxiety and strengthening her self-esteem; (5) she should
continue her “involvement in mainstream extracurricular activities;” and (6) she should undergo
“periodic neuropsychological re-evaluations . . . in order to assess her continued cognitive,
educational, and emotional needs.” (Id. at 96–97.)
Plaintiffs placed S.N. at the Windward School, a private special education day school, for
third grade—the 2014-15 school year. (Tr. 1077.) They did so after reaching out to the District,
S.N.’s district of residence, seeking an IEP for her, (Pls.’ Ex. D; id. Ex. K-1), which the District
declined to do until S.N. was formally enrolled in the District, (SD Ex. 1 at 2). Plaintiffs
commenced an Impartial Hearing against Defendant seeking reimbursement for the Windward
tuition for the 2014-15 school year, which was resolved by stipulation of settlement dated June
21, 2015. (SD Ex. 35.) The settlement included agreement that “[t]o the extent [Plaintiffs] [are]
seeking FAPE from the District for the 2015/16 school year, [they] shall complete a registration
packet . . . [and] [t]he District shall convene a CSE meeting to prepare an [IEP] for [S.N.] for the
2015/16 school year.” (Id. at 182.) As part of this process, Plaintiffs “shall provide the District
with all evaluations of [S.N.],” and consent to the District “conduct[ing] reasonable observations

4

of [S.N.].” (Id.) Plaintiffs reserved the right to pursue any claims relating to the 2015-16 school
year. (Id.)
Plaintiffs submitted registration materials and existing evaluations to the District on May
11, 2015. (Pls.’ Ex. J; see also id. Ex. E-3–4 (additional evaluations); SD. Exs. 6–13.) Plaintiffs
authorized the release of S.N.’s educational records to the District on May 29, 2015. (SD Exs.
20–21.) On June 4, 2015, Plaintiffs, through counsel, informed the District’s counsel that
Plaintiffs were seeking a FAPE. (Pls.’ Ex. F-1.) On June 22, 2015, after the stipulation of
settlement was signed, the District requested consent from Plaintiffs to conduct additional
evaluations of S.N. (SD Exs. 22–23; Tr. 72–73, 1084–85.) After receiving Plaintiffs’ consent,
the District had until June 26, 2015 to evaluate S.N. before she left for sleep-away camp until
August 16, 2015. (Tr. 66–67, 74, 1087; Pls.’ Ex. E-3.) As a result, no classroom observation
was completed, because classes at Windward had ended on June 11, 2015, (Tr. 84–85, 1087–91;
SD Ex. 21), and S.N. was not in any classroom from June 21 through August 4, 2015, (Tr. 1093).
On June 23, 2015, S.N. underwent a District educational evaluation, conducted by special
education teacher Rosita McNamara (“McNamara”), M.S. Ed., in which she scored in the
average range in all categories except reading comprehension, nonsense word decoding, and
decoding fluency, in which she scored in the below average range. (Pls.’ Ex. N-5.) 2 On June 24,
2015, Dr. Rebecca Greenwell (“Dr. Greenwell”) conducted a psychological evaluation of S.N.
(Pls.’ Ex. M.) However, Dr. Greenwell incorrectly listed S.N.’s date of birth as December 16,
2004, instead of 2005. (Id. at M-1; cf. SD Ex. 15 (changing date); id. Ex. 18 (noting date

2

The test summary section lists these sections as involving below average scores, but the
test results section earlier listed that S.N. scored in the “average” range on decoding fluency.
(Compare Pls.’ Ex. N-4 with id. Ex. N-5.) McNamara testified that this was a typographical
error. (Tr. 527.)
5

change).) Dr. Greenwell made her assessment based on a review of S.N.’s records, behavioral
observations, administering the Woodcock-Johnson III Test of Cognitive Abilities, and applying
Beck Youth Inventories, a behavioral assessment. (Pls.’ Ex. M-2.)
Dr. Greenwell noted that S.N.’s “attention and concentration levels were variable,” and
“[s]he displayed some confusion related to understanding and applying verbal directions.” (Id. at
M-5.) Dr. Greenwell also concluded that S.N.’s “overall intellectual abilities” fell “within the
Low Average range of functioning for her age,” but “significant variability existed within her
cognitive profile.” (Id.) Specifically, S.N. “demonstrated a strength in Visual-Spatial Thinking,”
but “[h]er skills in the areas of Long-Term Retrieval and Processing Speed were found to be ageappropriate and adequate for academic learning.” (Id. at M-5–6.) Dr. Greenwell explained that
while S.N.’s Fluid Reasoning skills were average, “she displayed a weakness on a task assessing
her inductive reasoning skills” in the low average range, indicating that S.N. “may experience
difficulty developing new concepts and making inferences.” (Id. at M-6.) Additionally, S.N.
tested Average on Short-Term Memory, but “displayed weaknesses on working memory tasks
. . . with skills ranging from [b]orderline to [l]ow [a]verage.” (Id.) “Finally, [S.N.] evidenced a
weakness in the area of Verbal Ability/Comprehension-Knowledge,” as she had intact linguistic
reasoning skills but “difficulty assessing and verbally producing responses related to her general
fund of information.” (Id.) Dr. Greenwall concluded that “[o]verall, [S.N.] displays weaknesses
with certain aspects of cognitive functioning and psychological processing that may impact her
ability to meet state-approved grade level standards.” (Id.) She therefore made several
recommendations for S.N.:
•
•

Activate prior learning and semantic information when teaching new
concepts
Keep instructions simple and provide verbal clarification as needed

6

•
•
•
•
•
•

Encourage [S.N.] to continue advocating for herself and requesting
clarification when she does not understand directions or task demands
Pre-teach relevant vocabulary or background knowledge
As [S.N.] displays weaknesses in verbal skills and strengths in visual skills,
use multi-sensory learning techniques and visual cues when possible to
facilitate learning and encoding of information
High rates of repetition, re-teaching, and practice of new skills due to
weaknesses in working memory
Due to weaknesses in inductive reasoning, use real objects, manipulatives,
and/or modeling to help develop concepts
Provide encouragement to attempt difficult tasks, coupled with praise and
positive reinforcement for effort

(Id.)
S.N. also underwent a speech and language evaluation by Claire Zucker (“Zucker”), a
speech/language pathologist, who administered the CELF-5, TAPS-3, and CTOPP-2 tests. (SD
Ex. 16.) The results indicated that all of S.N.’s “scores were within the average range, indicating
average receptive and expressive language skills as well as average short term auditory working
memory.” (Id. at 119.) Zucker noted that S.N.’s listening comprehension skills were in the
average range during testing, but “she demonstrated a relative weakness in the area of inferential
reasoning.” (Id.) Moreover, S.N. “demonstrated strong metacognition,” correcting her own
errors. (Id.) Despite her average range performance on all tasks, she exhibited “a relative
weakness in the area of language processing of lengthy complex information when not provided
with picture cues, print or answer choices.” (Id.) S.N. also “requested repetition of oral
information and benefitted from wait time while processing and formulating responses,” and
sometimes “needed additional explanation of directions.” (Id.) Zucker recommended that S.N.
be (1) allowed wait time for processing and responding; (2) provided information in chunks and
be asked to paraphrase information to check for understanding; (3) provided additional examples
for novel assignments; (4) shown auditory messages with visual pairs; (5) required to

7

demonstrate and practice memory strategies; and (6) work on inference-based questions. (Id. at
120.)
The new evaluations were mailed to Plaintiffs in advance of the scheduled CSE meeting.
(SD Ex. 25.) Plaintiffs also met with the evaluators in advance to discuss their findings. (Tr.
284, 525–26, 1094–95.) On August 4, 2015, the CSE met. (SD Ex. 4.) The meeting was
chaired by Julie Snider (“Snider”), the Director of Special Education for the District, and also
attended by Dr. Greenwell, McNamara, Zucker, general education teacher Lauren Fahey, and
S.N.’s mother, Sh. N. (one of the two Plaintiffs). (Id. at 24.) The CSE classified S.N. as having
a learning disability and found her eligible for special education and related services. (Id.) In
formulating its recommendations for an IEP, the CSE reviewed all of S.N.’s prior evaluations,
including her report cards from Solomon Schechter and Windward, and test results, and
identified her present levels of performance and individual needs. (Id. at 26–31.) The CSE
noted that S.N. needs to improve her study skills, phonic and word analysis skills in decoding,
reading comprehension skills, including inferential questions, and her math calculation skills, but
found that S.N. did not have social, emotional, physical, or motor needs that required special
education intervention. (Id. at 29–30.) Thus, the IEP set forth measurable annual goals in study
skills, reading, and math. (Id. at 31–32.)
Ultimately, the CSE recommended an IEP for the 2015-16 school year including direct
and indirect consultant teacher services in the classroom for 45 minutes on a 1 x 6 day cycle, and
a resource room program in a 5:1 ratio for 45 minutes on a 5 x 6 day cycle. (Id. at 24, 32.) It
also recommended several supplementary aids and services and accommodations in the
classroom as needed daily, including extra time to process and formulate responses, breaking
down instructions and directions, providing additional examples, providing visual cues and

8

manipulatives, providing S.N. with a graphic organizer, asking S.N. to paraphrase, providing
special seating arrangements, and checking for understanding. (Id. at 32–33.) In summarizing
its rationale for these recommendations, the CSE meeting summary states:
Chairperson next explained the continuum of services and the CSE’s charge to
make recommendations for students in their least restrictive environment. The
committee recommended a [r]esource [r]oom program to address IEP goals and to
deliver the specialized and targeted instruction in the areas of need. Consultant
Teacher services in the general education classroom were also recommended to
ensure generalizability of learned skills into the general education classroom.
Mother is unsure of the decision and wonders whether the student needs a small
class setting all day like Windward. The team explained that a special class
program all day or an integrated co-teaching program all day would be overly
restrictive. The student has a mild disability and she can access the general
education curriculum with [r]esource [r]oom support and accommodations. The
rest of the IEP was collaboratively developed. . . .
(Id. at 25; see also Tr. 93–94 (Snider testifying that “mild is not a technical standardized testing
term,” but conveys that S.N. has “average skills in the academic testing and there were very
discrete areas that needed to be addressed”); id. at 1037 (Sh. N. testifying that she thought it was
“too mild of a program for [S.N.]”.)
On August 19, 2015, Plaintiffs, through counsel, notified the District of their intent to
place S.N. at the Windward School for the 2015-16 school year and to seek reimbursement for
the tuition if the District did not fix certain procedural and substantive errors in the proposed IEP
that denied S.N. a FAPE. (SD Ex. 28.) Specifically, Plaintiffs argued that (1) they were “denied
meaningful participation in the development of the IEP,” as Sh. N.’s and Dr. Tagliareni’s
opinions that S.N. “requires a full-time special education program” were “completely
disregarded at the meeting;” (2) the resource room recommendation “[wa]s inappropriate to meet
[S.N.]’s significant educational needs” and would cause her to miss special classes she enjoys;
(3) the CSE failed to conduct a social history and a structured observation of S.N.; (4) the
characterization of S.N.’s disability as “mild” was incorrect; (5) there was incorrect reporting of
9

S.N.’s scores on the speech/language evaluation end educational evaluation; and (6) there was
reliance on Dr. Greenwell’s evaluation, which refers to an incorrect birthdate for S.N. (Id. at
163–64.) Plaintiffs contended that “[t]hese mistakes are just examples of the CSE’s
misunderstanding of [S.N.’s] complex needs,” which resulted in a minimal program
recommendation, immeasurable goals, and classroom accommodations that cannot be
implemented “throughout the day.” (Id. at 164.)
Snider, on behalf of the District, responded to Plaintiffs’ letter. (SD Ex. 29.) First, she
explained that no classroom observation was possible because school was not in session, but one
could occur “once school has started,” attaching a consent form. (Id. at 165.) Second, Snider
noted that the CSE reviewed social history from the private neuropsychological report and other
developmental milestones and school history. (Id.) With respect to Dr. Greenwell’s results,
Snider reported that she “will review that she ran the WJIII scores correctly using [S.N.]’s
correct Date of Birth” and it will be verified and shared with Plaintiffs when school resumes.
(Id.) Snider also stated that the CSE determined that a special class program all day “would be
overly restrictive.” (Id.) She also disputed several facts asserted in Plaintiffs’ letter, contending
that S.N. would not need to miss special classes for resource room period; S.N.’s below average
scores were correctly indicated in the CSE minutes and in the speech and language evaluations;
and S.N. will receive 45 minutes of special education on five of six days, not nine minutes. (Id.
at 165–66.)
On October 14, 2015, Debra Saffos (“Saffos”), a speech and language therapist,
conducted a classroom observation of S.N. in her fourth grade language arts class at Windward.
(SD Ex. 19; Tr. 111.) Saffos gave S.N. the score of “at expected grade level” in readiness skills,
reading, attention, self-control, independence, interaction with adults, organizational skills,

10

following routines, following directions, and expressive language-responses in group discussion.
(SD Ex. 19 at 148.) 3 Saffos also commented that S.N. “participated enthusiastically, and was
engaged throughout the lesson,” and S.N.’s teacher reported that S.N. “is an accurate and careful
reader who uses reading strategies,” but “she still exhibits some vowel confusion and is working
on reading of phrases to improve fluency.” (Id.)
On November 23, 2015, a subcommittee of the CSE convened to review the classroom
observation results and Dr. Greenwell’s revised evaluation. (SD Ex. 5 at 36.) Windward staff
participated in the meeting by telephone. (Id; see also Tr. 215 (identifying Beardsley); Pls.’ Ex.
W-2 (identifying Diller).) They described S.N. as lower functioning and in higher need than the
way her skills were represented in her previous Windward report cards; namely, she had much
greater difficulties in reading, writing, and math. (Tr. 312–13, 556–57; SD Ex. 5 at 40–41; see
also Tr. 697 (Saffos testifying that “they were describing a student that sounded like she was
struggling more than I observed”).) As to Dr. Greenwell’s revised results, the CSE minutes
noted that running the test with S.N.’s correct birthday resulted in “improved” new scores, which
the CSE reviewed. (SD Ex. 5 at 37; compare Pls.’ Ex. M (original report) with SD Ex. 18
(revised report) (showing increase in General Intellectual Ability score, ComprehensionKnowledge standard score, Thinking Ability score, Visual Auditory learning, Retrieval Fluency,
Visual-Spatial Thinking, Picture Recognition, Auditory Processing, Fluid Reasoning, Cognitive
Efficiency Processing Speed, Short-Term Memory, Working Memory, but omitting score on
Long-term retrieval and comparison scores for Auditory Working Memory and showing same
percentile for Superior Working Memory skills); see also Tr. 271–72 (Greenwell testifying that

3

The “Reading” category says “1-2,” but the “2” is bolded. (SD Ex. 19 at 148.) 1 means
“below expected grade level” and 2 means “at expected grade level.” (Id. at 147–48.)
11

the change “resulted in . . . a slight increase in [S.N.’s] standard scores in each of [the] areas that
were assessed,” but her cognitive “profile of strengths and weaknesses remained consistent”).)
After reviewing this information, the CSE changed S.N.’s IEP to include four hours daily
integrated co-teaching, instead of consultant teaching services, and continued the resource room
support. (SD Ex. 5 at 36–37.) The meeting minutes indicate that the Windward teachers and
Plaintiffs “agreed that this level of services was appropriate.” (Id. at 37.) Snider, Dr. Greenwell,
and McNamara testified that such changes were not warranted by the corrected scores in Dr.
Greenwell’s report, but rather attributed to the statements of Windward staff. (Tr. 115–16, 309–
12, 563.) Additionally, the CSE added several math and writing goals to S.N.’s IEP. (SD Ex. 5
at 37, 44–45.)
1. Due Process Complaint and IHO Decision
On January 28, 2016, Plaintiffs filed a complaint requesting an impartial due process
hearing under 20 U.S.C. § 1415. (SD Ex. 1.) The due process complaint notice alleged that the
District failed to provide S.N. with a FAPE on procedural and substantive grounds and requested
reimbursement for the 2015-16 school year tuition at Windward. (Id. at 1.) Plaintiffs alleged
that this denial of FAPE was based on, but not limited to, the following factors:
•

•

•
•

The CSE “failed to consider critical substantive information” provided by
Plaintiffs and Dr. Tagliareni, thereby denying Plaintiffs “meaningful
participation in the development of the IEP” and depriving S.N. of
“important educational benefits that were necessary to enable her to make
educational progress.”
The August 4, 2015 IEP notes that S.N. needs “specialized instruction,” but
only provided for “[r]esource [r]oom 5 times per 6 day cycle . . . in a group
of 5 children,” which “does not allow for sufficient specialized and direct
instruction.”
“[I]n order to receive [r]esource [r]oom, [S.N.] would be pulled out of her
classroom, causing her to miss valuable instruction time within the
classroom.”
The CSE “failed to conduct both a social history and a structured
observation of [S.N.].” Reliance on Dr. Tagliareni’s report for social
12

•

•

•

history was improper because it contained no such section and was not
updated. Moreover, the “CSE had more than sufficient time to observe
[S.N.]” having known about her suspected disability since 2013 and having
her enrollment form in May 2015, but “failed to make any arrangements to
observe [her] in a classroom or other setting.”
The CSE mischaracterized S.N.’s disability as “mild” even though her
reading comprehension and decoding scores are “below average,” and she
met the criteria for dyslexia and was diagnosed with ADHD and a Learning
Disorder in reading and math.
The August 4th IEP contains “inaccuracies in the reporting of [S.N.]’s
scores,” including: listing some tests as average when subtests were low
average in the IEP and in the educational evaluation, and the misreporting
of S.N.’s birthdate in the psychological evaluation, resulting in a minimal
recommended program, immeasurable goals, and classroom
accommodations that are impossible to implement.
Plaintiffs were not provided with a valid IEP as of the date of
commencement of the 2015-16 school year, and it was legally improper for
the District to attempt to cure the deficiencies after the school year had
begun.

(Id. at 3–5.)
On April 28, 2016, Sharyn Finkelstein Esq., the appointed IHO (“IHO”) commenced an
impartial hearing, which ended on November 18, 2016 after five nonconsecutive days of
testimony. (Findings of Fact & Decision (“IHO Decision”) (Dkt. No. 22).) On January 12,
2017, the IHO issued a decision finding that the District failed to offer S.N. a FAPE for the
2015-16 school year and directing the District to reimburse Plaintiffs for the cost of Windward
tuition for that year. (Id. at 25–26.) The IHO first addressed the stipulation of settlement, which
she admitted into evidence because it was relevant to when the District’s obligations began for
the 2015-16 school year. (Id. at 11.) The IHO concluded that the stipulation “does not remove
the [D]istrict’s obligation to have taken all necessary steps to provide [S.N.] with a FAPE for the
2015-16 school year,” and thus rejected the District’s argument that the short timeframe between
signing the stipulation and S.N. leaving for camp limited its ability to conduct an observation at
Windward, because “there is no legal justification for the [District] to have waited for a signing

13

of an agreement for the 2014-15 school year to take steps to ensure a FAPE for [S.N.] for the
2015-16 school year.” (Id. at 11–12.) Rather, the IHO found “that the evidence clearly
establishes that [S.N.] was seeking a FAPE” for that year prior to signing the settlement and “the
District was certainly on notice.” (Id. at 12.)
The IHO therefore concluded that the District should have conducted a classroom
observation of S.N. at Windward, particularly when no one from Windward participated at the
CSE meeting. (Id. at 15.) Specifically, the IHO found “that the [CSE] needed to see and know
how [S.N.] was functioning in her then present school” to decide whether “a change to a general
education school would be appropriate.” (Id. at 16.) The IHO further noted that the input of
Windward staff “was crucial to any program recommendation,” as evidenced by the fact that the
District relied “solely on information they obtained from the Windward staff” in changing S.N.’s
IEP at the second CSE meeting. (Id.) Thus, the IHO found that “there probably would not have
been a need for a modified IEP” if Windward staff had participated in the initial CSE meeting,
and “their lack of participation was the result of the District failing to act in a timely manner.”
(Id.) 4 Put differently, the IHO found “that had the information [from Windward] been available
in August[,] [S.N.] would have had an IEP with the recommendation of a more restrictive
setting.” (Id. at 21.)
Relatedly, the IHO agreed with the District that the CSE reconvened in November to
consider new information and that it was obligated to do so, but found that this new information
“w[as] the result of [the] District’s error or omission,” which relates to the District’s “wait[ing]
too long to begin [its] evaluations.” (Id. at 20–21.) The IHO concluded that if the District began

4

The IHO also rejected the District’s argument that Plaintiffs failed to raise this point in
their due process complaint, pointing to such a reference. (IHO Decision 16.)
14

its evaluations prior to signing the stipulation, it would have had “ample time to correct any
errors . . . , to conduct an observation, and to speak with staff at Windward, prior to the IEP
meeting.” (Id. at 21.) With respect to the incorrect birth date used in Dr. Greenwell’s
evaluation, the IHO found “that the [CSE] relied on a document that was incorrect” and “that the
change in document needed to have been done prior to making the recommendation” for S.N.’s
IEP. (Id. at 17.)
The IHO also noted that “[t]here was no discussion about the fact that [S.N.] had been in
a full time specialized program” and how that would affect her IEP. (Id. at 20.) Specifically, the
IHO pointed to lack of discussion regarding whether the program modifications and testing
accommodations in S.N.’s IEP would be “sufficient for [S.N.] in a general education setting,” as
opposed to a specialized school, whether S.N. was “ready to transition into a large school setting
with large classrooms,” although she had attention difficulties and issues with confidence and
anxiety and had “been unsuccessful in a prior mainstream setting.” (Id.) The IHO therefore
found “that the District failed to address [S.N.]’s individual needs.” (Id.)
The IHO therefore held that the District did not provide S.N. with a FAPE for the 201516 school year, because “the IEP was procedurally and substantively inappropriate.” (Id. at 21.)
She noted that “the District did not have the appropriate documents in order to determine an
appropriate recommendation,” including a psychoeducational evaluation with a correct birth
date, nor did it have observation at or participation from Windward or information about S.N.’s
“ability to function in a mainstream setting.” (Id.) The IHO then concluded that Plaintiffs met
their burden of showing that Windward was an appropriate placement for S.N. (Id. at 23–25.)
Finally, the IHO concluded that the equities would not bar Plaintiffs from reimbursement. (Id. at
25.)

15

However, the IHO rejected several of Plaintiffs’ arguments. First, she concluded that the
use of the word “mild” to describe S.N.’s disability was not “a determining factor in the type of
recommended program,” citing Snider’s testimony. (Id. at 18.) Second, the IHO rejected
Plaintiffs’ argument that the District was obligated to conduct a social history or that failure to do
so deprived S.N. of a FAPE, because this was not an initial evaluation; rather, S.N. was already
deemed eligible for IDEA services by the White Plains School District, and the CSE had
information about S.N.’s social history from providers and previous evaluations, which Sh. N.
did not correct or add to at the IEP meeting. (Id.) Third, the IHO found that Plaintiffs were
“given every opportunity to participate in a meaningful way” in the development of S.N.’s IEP,
citing evidence that Plaintiffs received copies of the evaluations for review, all the evaluators
met with Sh. N. “to make sure she understood the results” and “could fully participate at the
meeting” and “listened to [her] feedback,” including responding to her concern about the need
for a smaller setting all day like at Windward. (Id. at 18–19.) Fourth, the IHO concluded that
the District is “only obligated to consider outside reports but not to necessarily agree and follow
their recommendations,” and the evidence suggested the District reviewed Dr. Tagliareni’s
recommendations, even if it did not adopt them. (Id. at 19.) Fifth, the IHO rejected Plaintiffs’
argument that the IEP goals were “vague and inadequate,” noting that they were discussed in
depth, agreed to, and based on the information before the CSE. (Id.) Finally, the IHO found “no
basis” for Plaintiffs’ argument that S.N. would “miss[] valuable instruction when she was pulled
out of class” for the resource room program, although she did note that the District
concomitantly provided “no explanation why [it] felt that [S.N.] did not need the resource room
every day,” as opposed to five times every six days. (Id. at 20.)

16

2. SRO Decision
Defendant appealed the IHO’s decision. (Notice of Intention to Seek Review (Dkt. No.
22).) On March 24, 2017, the SRO modified the IHO’s decision by reversing the portions which
found that Defendant failed to offer S.N. a FAPE for the 2015-16 school year and which directed
Defendant to reimburse Plaintiffs for the cost of Windward tuition. (SRO Decision 23 (Dkt. No.
22).) The SRO began her analysis by addressing the scope of the impartial hearing, concluding
that any finding of a child find violation by the IHO was outside said scope because that issue
was not raised in Plaintiffs’ due process complaint, but the other issues evaluated by the IHO—
the failure to conduct an observation at Windward and procure the presence of Windward staff at
the August CSE meeting, the timeliness of the District’s evaluations, the sufficiency of the IEP
for the general education setting and S.N.’s potential anxiety in such a setting—were all properly
considered. (Id. at 10–11.) 5 Additionally, the SRO rejected the District’s argument that the IHO
misapplied the June 2015 settlement agreement, concluding that the IHO did not base her finding
of an IDEA violation on the settlement, but “she correctly noted that the settlement agreement
did not release the [D]istrict from its obligation to ‘take all necessary steps’ to provide [S.N.]
with a FAPE for the 2015-16 school year.” (Id. at 11.) Finally, the SRO noted that “[t]he IHO
also made a number of findings that were not cross-appealed or asserted as alternate grounds for
affirmance by” Plaintiffs—namely, that the IEP’s characterization of S.N.’s disability as “mild”
and lack of current social history did not deny her a FAPE, that Plaintiffs were able to participate

5

The “child find” obligation under the IDEA requires that “each state receiving federal
funds must have in effect policies and procedures by which it will identify, locate, and evaluate
all children with disabilities,” or children “who are suspected of being a child with a disability”
that are “residing in the State to determine whether these children require special education and
related services.” J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 659–60
(S.D.N.Y. 2011) (alterations and internal quotation marks omitted).
17

in the CSE meeting, that the CSE adequately considered the private neuropsychological report,
and that the IEP goals were sufficient to address S.N.’s areas of need—and thus “they have
become final and binding on the [P]arties.” (Id.)
The SRO next considered the sufficiency and consideration of evaluative information
before the August 2015 CSE. (Id. at 11–19.) First, the SRO concluded that “[a] review of the
hearing record shows that the IHO correctly found that the [D]istrict’s failure to act in a timely
manner resulted in the Windward staff not participating in the August 2015 CSE, and that this
contributed to the CSE not having information regarding [S.N.’s] functional performance.” (Id.
at 11–12.) However, the SRO found that, while the later additions to S.N.’s IEP in November
2015 were based on information provided by Windward staff—specifically, the 2015-16
language arts teacher—the new information was about S.N.’s functioning during the 2015-16
school year, not the 2014-15 school year. (Id. at 12.) “Accordingly, that the CSE modified its
recommendation based on [that] input cannot be taken to mean that [S.N.]’s functional
performance during the 2014-15 school year at Windward was different than reflected in the
2014-15 Windward progress reports,” particularly where the CSE chairperson found this new
information to be discrepant from the information available at the August meeting regarding
S.N.’s level of need, including her report cards, which the SRO found “sufficient to determine
[S.N.]’s] functional performance.” (Id.)
The SRO next found, based on a review of the hearing record, that “the [D]istrict’s
reliance on an erroneous psychoeducational evaluation and its failure to obtain input from
Windward personnel[] constituted procedural errors.” (Id.) After recounting the standards
governing evaluations of a student with a disability and the subsequent consideration of such
evaluations when developing a student’s IEP, (id. at 12–13), the SRO analyzed the August 2015

18

CSE’s consideration of S.N.’s evaluations, (id. at 13–17). First, the SRO noted that the “CSE
undertook a[] historical review of [S.N.]’s performance across multiple years and multiple school
settings,” including the June 24, 2015 speech-language evaluation, the June 23, 2015 educational
evaluation, the June 20, 2014 physical examination, the April/May 2013 private
psychoeducational evaluation, and the August 27, 2014 neurophysical evaluation, which
included a social history. (Id. at 13.) The SRO also noted that the IEP incorporated excerpts
from S.N.’s 2014 and 2015 report cards. (Id.) Additionally, the SRO stated that the results of
the 2015 psychological evaluation were “called into question” because of the scoring error. (Id.
at 13–14.)
The SRO next described how the IEP “presented the findings of these evaluations in a
manner that centered on [S.N.]’s academic achievement in reading, writing, and mathematics,
intellectual functioning, and speech/language abilities,” with additional assessment information
relating to her social/emotional functioning. (Id. at 14.) With respect to academic skills, the IEP
primarily relied on the June 2015 educational evaluation, containing S.N.’s Kaufman Test of
Educational Achievement (“K-TEA”) scores, which were below average in reading
comprehension, nonsense word decoding, and decoding fluency. (Id.) The IEP also repeated the
educational evaluation’s finding of S.N.’s difficulty in responding to questions assessing
influential comprehension, decoding words with a wide range of elements, and decoding
nonsense words. (Id.) However, a quoted excerpt for S.N.’s 2014-15 Windward report card
stated that S.N. “was decoding more accurately and reading with better fluency,” and was
benefiting from rereading. (Id.) The IEP also reported that S.N.’s K-TEA written language
scores “fell within the average range,” and the educational evaluation stated that she showed
“strong skills” in punctuation and average skills in capitalization, word form and structure. (Id.)

19

And, S.N.’s Windward report card highlighted S.N.’s ability to compose a paragraph and her
increased efforts to achieve “greater independence.” (Id.)
Turning to the IEP’s depiction of S.N.’s math skills, the SRO found that the IEP
“mirrored the results of [S.N.’s] performance on the K-TEA and were described as falling within
the average range.” (Id. at 15.) However, the IEP also explained that S.N.’s “ability to solve
problems involving addition, subtraction, and measurement was less well developed” than her
multiplication skills. (Id.) “The IEP also remarked on [S.N.]’s use of strategies to solve
problems,” including using drawings, internalizing math facts, repeated practice, use of
manipulatives, and a math reference folder—all of which improved S.N.’s math skills as
indicated on her Windward report card. (Id.)
The SRO next observed that, although the IEP discussed the June 2015 psychological
evaluation, “the accuracy of the results regarding [S.N.]’s functioning was compromised,”
because “her performance on the assessment was compared with that of a student who was ten
years, six months,” rather than her actual age—nine years, six months. (Id.) The SRO found
that, “[d]ue to this error, the August 2015 IEP mischaracterized multiple aspects of [S.N.]’s
performance. (Id.) Specifically, the IEP characterized S.N.’s performance on one subtest as
“borderline” when it was actually “low average” when scored correctly, and in other instances,
characterized S.N.’s performance as “low average” when they actually were “average.” (Id.)
Indeed, one initial classification was “average,” but was actually “superior” when corrected.
(Id.) However, despite these errors, the SRO noted that the August 2015 IEP also “carried over
some [of] the evaluator’s observations of [S.N.]’s behavior during the testing session,” including
her attention levels. (Id.)

20

Next, the SRO described the IEP’s delineation of S.N.’s results from the June 2015
speech-language evaluation. (Id. at 15–16.) This included an observation that S.N.’s
performance on three separate tests “were all within the average range,” but S.N. exhibited
weakness with language processing of lengthy, complex information when not provided with
cues or prompts. (Id. at 15–16.) “The IEP also echoed comments from the speech-language
evaluation . . . that described [S.N.]’s use of metacognition and good attending skills,” even
amongst background noise. (Id. at 16.) The SRO noted, however, that the speech-language
evaluator’s assessment of S.N.’s behavior during testing “appears in conflict with the
observations reported in the psychological evaluation report.” (Id. at 16 n.7.)
The SRO further analyzed the IEP’s overview of S.N.’s strengths in metacognitive skills
and self-advocacy when confronted with something she does not understand, and noted
indications of “good work habits” and “good progress across all subjects” on S.N.’s 2014-15
Windward report card. (Id.) Furthermore, the IEP “noted parental concern regarding [S.N.]’s
self-concept and anxiety as related to her ‘learning difficulties.’” (Id.) However, after noting
S.N.’s “average” scores on the Beck Self-Concept Inventory and S.N.’s “average levels of
anxiety for her age,” the IEP found that S.N. did not have any “social and emotional needs that
should be addressed through special education” at the time of the August 2015 CSE meeting.
(Id.) The IEP noted, though, that S.N.’s self-concept would be “monitored.” (Id.)
The SRO also described the IEP’s reliance on S.N.’s 2014-15 Windward report cards,
which “provided an itemized list of discrete skills taught” at the school, as well as a “rubric for
each subject that reflected [S.N.]’s progress across each marking period of the school year.” (Id.
at 17.) The report card also “provided insights regarding [S.N.’s] classroom behavior during
academic and special area subjects,” and “listed teacher ratings” for how frequently S.N.

21

“exhibited positive and prosocial school behaviors in each of her classes.” (Id.) The SRO noted
that “all ratings were ranked as either ‘consistently’ or ‘frequently’”—the top two scores—
although “a few targeted behaviors were judged at the same level across all or most subjects,”
such as following single-step directions and using class materials appropriately. (Id.)
The “CSE concluded that, based upon these assessments, [S.N.] demonstrated ‘delays in
reading decoding, reading comprehension, and math calculation which inhibits progress in the
general education curriculum.” (Id. at 17 (quoting SD Ex. 4 at 30).) The SRO concluded that
“the hearing record provides no basis to depart from the IHO’s determination that the failure to
obtain a classroom observation and the incorrect scoring of the cognitive testing on the June
2015 psychological evaluation constituted procedural violations.” (Id.) However, the SRO also
found that these procedural violations did not render S.N.’s IEP invalid under the Second Circuit
standard, which requires that “the violation affected the student’s right to a FAPE, resulted in the
loss of educational opportunity, or seriously infringed on the parents’ right to participate in the
IEP development process.” (Id. at 17–19.) Specifically, the SRO concluded that “the hearing
record establishes that the [D]istrict considered evaluative information that provided a
considerable amount of information regarding [S.N.’s] functioning,” including, as the IHO
found, the 2014 private neuropsychological evaluation, and thus “failure to obtain a classroom
observation did not render [the CSE] unable to develop an appropriate program.” (Id. at 18.)
The SRO rejected Plaintiffs’ reliance on “the more supportive recommendation made by the
November 2015 CSE,” because “the basis for that determination was information that went
beyond [S.N.’s] performance at Windward during the 2015-15 school year” and members of the
CSE found it “discrepant from their understanding of [S.N.’s] needs.” (Id.)

22

Moreover, the SRO found that the hearing record “does not establish that any procedural
violations in this matter, individually or cumulatively, resulted in a denial of a FAPE to [S.N.].”
(Id.) Specifically, she noted that Plaintiffs’ due process complaint did not challenge the IEP’s
present levels of performance, other than the “mild” disability characterization, nor did Plaintiffs
appeal the IHO’s determination that they were able to participate in the development of S.N.’s
IEP. (Id.) Furthermore, the SRO reiterated that “the IEP reflected information from a variety of
sources,” and Plaintiffs “do not allege any specific harm caused by the inaccurate score” in the
June 2015 psychological evaluation, “nor do they contend that the incorrect scoring” hindered
their ability to participate in the CSE meeting. (Id.) Rather, the SRO explained, Plaintiffs
“asserted that the [D]istrict failed to give sufficient credence to the recommendations of the
private neuropsychological evaluation, an argument the IHO rejected.” (Id.) Thus, the SRO
rejected Plaintiffs’ argument that the District lacked sufficient information regarding S.N.’s
functional performance, because “the evaluative information available to the CSE, even if not
meeting the procedural requirements for an initial evaluation, provided sufficient information . . .
to develop her IEP.” (Id. at 18–19.)
The SRO then addressed the substantive adequacy of the August 2015 IEP. (Id. at 19–
22.) After reviewing the hearing record, the SRO agreed with the District that the IHO erred in
finding that the IEP would not address S.N.’s needs and that S.N. required a greater level of
support to be successful in a mainstream setting. (Id.) First, the SRO analyzed the
recommended programs in the IEP—a resource room program in a 5:1 ratio in 45-minute
sessions on five days out of a six-day cycle; consultant teacher services for 45 minutes one day
out of a six-day cycle which are described as “work[ing] directly with the student to ensure
generalizability of skills into the classroom with natural materials” and done in “consult[ation]

23

with the general education teacher”; and supplementary aids and services—and concluded that
the record shows that “the CSE did . . . have adequate reason to believe that [S.N.] could be
successful in a mainstream setting with the foregoing supports.” (Id. at 19.) Next, the SRO
addressed Sh. N.’s concern, voiced during the CSE meeting, that S.N. required a “small group
setting.” (Id.) The SRO recounted the testimony of the CSE chairperson that it was the
“professional opinion” of District staff that S.N. had “more strengths than difficulties” and
mostly “average skills,” with only “very discrete areas that needed to be addressed.” (Id.) To
that end, the chairperson testified, and the IHO found, that the resource room would deliver such
specialized instruction in S.N.’s areas of weakness, and the special education teacher leading the
resource room would also provide the recommended consultant teacher services that would
enable S.N. to ensure generalization of her skills in the general education setting. (Id. at 19–20.)
Similarly, the SRO described the testimony of the District’ special education teacher, who
conducted the June 2015 educational evaluation, and who testified that the recommended
program “would be appropriate to meet the student’s needs” by providing her with instruction
and practice to learn from and by implementing the majority of the work on S.N.’s annual goals
in the resource room. (Id. at 20.) The chairperson and the special education teacher both
testified that offering the resource room five out of six days was sufficient, because S.N. would
still receive the additional program modifications and accommodations every day. (Id.)
The SRO also noted that the District’s school psychologist testified that the IEP
recommended program was sufficient, because “the Windward progress reports showed that
[S.N.] had made progress with respect to academic skills” and reflected that S.N. was able to use
and apply strategies provided to her with explicit instructions. (Id.) Similarly, the SRO cited the
District speech-language pathologist’s testimony that S.N.’s reading and math difficulties,

24

although below average, were “consistent with the types of kids that [the District] see[s] in a
resource room,” the IEP was appropriate for her, together with the other recommended
modifications and accommodations in the general classroom. (Id.) In particular, the pathologist
opined that S.N. required “some wait time” to answer questions, but she had “strong
metacognitive skills.” (Id.)
The SRO found that, contrary to the IHO’s finding that there was “no discussion” at the
CSE meeting about the impact of enrollment in a mainstream setting on S.N.’s distractibility and
confidence level, the “record reveals inconsistent references to possible concerns in this
domain.” (Id.) Specifically, S.N.’s report card from the nonpublic general education school
noted that S.N. “preferred clear expectations and asked for help at times when she felt ‘unsure,’”
and both the June 2013 classroom observation and the 2014 psychological evaluation noted S.N.
was at times inattentive, hyperactive, or distracted, but the June 2015 speech-language
pathologist reported that S.N. was attentive during a three-hour evaluation, even with
background noise. (Id. at 20–21.) Therefore, the SRO concluded that “[s]uch discrepant
observations challenge the predictive validity regarding how [S.N.] would react to enrollment in
a mainstream classroom in the public school.” (Id. at 21.)
Similarly, again based on a review of the hearing record, the SRO disagreed with the
IHO’s conclusion that “the CSE had no basis to believe [S.N.] would be able to make progress in
a general education environment.” (Id.) The SRO again noted that the CSE considered S.N.’s
progress at the nonpublic general education school, including her second grade report card,
which showed that S.N. “was progressing towards grade level expectations in all areas” within
language arts subjects and was performing “at grade level in three of the four subskills” in math
and “determined to be approaching grade level expectations” in another math category. (Id.)

25

The report card also noted S.N.’s struggles with phonemic awareness, decoding, and math facts,
but stated that S.N.’s “literal and inferential comprehension would also improve” with growth in
these skills and that S.N. was “persistent” in math. (Id.) Furthermore, the report card contained
comments portraying S.N. “as having well-developed social skills,” and “as being an active
learner and frequent participant in literacy activities.” (Id.)
The SRO further noted that while Sh. N.’s testified that S.N. was “pulled out” of class for
support due to “mild issues,” as opposed to “major red flags,” and was “falling behind a little bit
in the curriculum in the classroom,” the August 2014 neuropsychological evaluation indicates
that Plaintiffs reported that S.N. had “struggled across several academic domains” and had
“regressed so much” that she had become resistant to reading and writing activities. (Id.)
Furthermore, the SRO addressed the psychologist’s conclusion that S.N. “require[d] a small full
time special education program” and that she would not be able to function effectively in a
general education setting because she would not have enough time for word processing while
reading, noting that there was “consistent testimony of the [D]istrict witnesses” that the extra
time modification in the IEP “would be consistently implemented within the general education
classroom,” thereby “reveal[ing] the private psychologist’s lack of familiarity with the [D]istrict
public school programs.” (Id. at 21–22.) Indeed, the SRO recounted the testimony of the regular
education teacher, who claimed “there would be no difficulty in implementing” the IEP’s
modifications and accommodations, and the special education teacher, who also so testified and
added that these recommendations “aligned with [S.N.’s] weaknesses as seen in the testing
conducted in June 2015.” (Id. at 22.) Similarly, the speech-language pathologist indicated that
the IEP’s recommendations could be implemented in the general education classroom and would
address S.N.’s “subtle relative weaknesses” with language processing. (Id.) The CSE

26

chairperson and school psychologist also testified about how the recommended modifications
would address S.N.’s specific areas of need and how they would operate in a general classroom
environment. (Id.) Therefore, the SRO concluded that “the August 2015 CSE was in possession
of adequate evaluative information regarding [S.N.]’s functional performance, and developed a
program reasonably calculated to address [her] needs reflected by that evaluative information,”
and reversed the IHO’s determination to the contrary. (Id.)
Having reversed the IHO’s finding that the District failed to offer S.N. a FAPE for the
2015-16 school year, the SRO did not reach the issue of whether Windward was an appropriate
unilateral placement or whether equitable considerations support Plaintiffs’ claim to
reimbursement. (Id.)
B. Procedural History
Plaintiff commenced this Action by filing the Complaint on June 9, 2017. (Compl.) On
July 25, 2017, Defendant filed a letter requesting that it not file a responsive pleading to the
Complaint and instead that the Court schedule a pre-motion conference regarding a putative
summary judgment motion. (Letter from Mark C. Rushfield, Esq. to Court (July 25, 2016) (Dkt.
No. 6).) Defendant also suggested that Plaintiffs file the summary judgment motion, obviating
the need for cross-motions for summary judgment. (Id.) Plaintiffs filed a letter consenting to
Defendant’s requests and further requesting that the Court “permit the [P]arties to dispense with
the requirement of [Local] Rule 56.1 and allow the operative facts to be contained with the
[P]arties’ respective memoranda of law.” (Letter from Diana Gersten, Esq. to Court (July 26,

27

2016) (Dkt. No. 7).) The Court granted these requests. (Dkt. No. 8.) 6 The Parties submitted a
joint briefing schedule, (Dkt. No. 9), which the Court approved, (Dkt. No. 10).
On September 18, 2017, Plaintiffs filed the instant Motion for Summary Judgment and
accompanying papers. (Not. of Mot; Pls.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Pls.’
Mem.”) (Dkt. No. 12).) Defendant filed its opposition and accompanying papers on November
1, 2017. (Aff. of Mark C. Rushfield, Esq. in Opp’n to Mot. for Summ. J. (Dkt. No. 15); Mem. of
Law in Opp’n to Mot. for Summ. J. (“Def.’s Mem.”) (Dkt. No. 16).) Plaintiffs filed their reply
on December 4, 2017. (Reply Mem. of Law in Supp. of Mot. for Summ. J. (“Pls.’ Reply”) (Dkt.
No. 19).) On April 6, 2018, the Court ordered the Office of State Review of the New York State
Department of Education to mail a copy of the certified record to Plaintiffs’ counsel, who was
subsequently ordered to provide a copy of that record to Defendant’s counsel and to file a copy
with the Court under seal pursuant to Federal Rule of Civil Procedure 5.2(d). (Order (Dkt. No.
21).) Plaintiffs filed the administrative record under seal on May 11, 2018. (Dkt. No. 22.)

6

Because the Court permitted the Parties to incorporate facts into their memoranda rather
than file Rule 56.1 statements, the Court declines to consider the affirmation of defense counsel,
which is not factual, is not based on personal knowledge, and instead presents further legal
argument in an apparent attempt to evade the Court’s page limitations. (Aff. of Mark C.
Rushfield, Esq. in Opp’n to Mot. for Summ. J. (Dkt. No. 15).) See Wyler v. United States, 725
F.2d 156, 160 (2d Cir. 1983) (“An affidavit of the opposing party’s attorney which does not
contain specific facts or is not based on first-hand knowledge is not entitled to any weight.”);
Great Atl. & Pac. Tea Co. v. Town of E. Hampton, 997 F. Supp. 340, 346 n.1 (E.D.N.Y. 1998)
(noting that the “plaintiff’s counsel’s . . . affidavit is argumentative in the extreme and better
characterized as a memorandum of law than an affirmation of facts within the personal
knowledge of the affiant” and, because it was “submitted contemporaneously with a . . .
memorandum of law, is a thinly-disguised attempt to circumvent this Court’s page limits”).
28

II. Discussion
A. Statutory Background
The IDEA requires that states receiving federal funds provide a “free appropriate public
education”—a “FAPE,” for short—to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A);
see also Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 992–93
(2017) (same). A FAPE “includes both ‘special education’ and ‘related services,’” which a state
must provide to a disabled child “‘in conformity with the child’s individualized education
program,’ or IEP.” Endrew F., 137 S. Ct. at 994 (quoting § 1401(9)(D)) (alteration omitted).
“School districts, through a CSE, are responsible for formulating a written IEP for every
qualifying child.” L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 102 (2d Cir. 2016)
(footnote omitted); see also 20 U.S.C. § 1414(d) (same). 7 “The IEP sets out the child’s present
educational performance, establishes annual and short-term objectives for improvements in that
performance, and describes the specially designed instruction and services that will enable the
child to meet those objectives.” L.O., 822 F.3d at 102–03 (internal quotation marks omitted); see
also Endrew F., 137 S. Ct. at 994 (listing statutory criteria governing IEPs).
“The IDEA . . . requires an educational program reasonably calculated to enable a child
to make progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at
1001; see also Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 757 (2d Cir. 2018) (“Prior
decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.”); L.O.,
822 F.3d at 103 (“To comply with the provisions of the IDEA, the IEP must be reasonably

7

“In New York, the state has assigned responsibility for developing IEPs to local CSEs.
CSEs are comprised of members appointed by the local school district’s board of education, and
must include the student’s parent(s), a regular or special education teacher, a school board
representative, a parent representative, and others.” L.O., 822 F.3d at 102 n.4 (alteration,
citations, and internal quotation marks omitted); see also N.Y. Educ. Law § 4402(1)(b)(1)(a)).
29

calculated to enable the child to receive educational benefits.” (internal quotation marks
omitted)). There is no “bright-line rule” determining “what ‘appropriate’ progress” means;
rather, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it
was created.” Endrew F., 137 S. Ct. at 1001; see also S.C. v. Katonah-Lewisboro Cent. Sch.
Dist., 175 F. Supp. 3d 237, 250 (S.D.N.Y. 2016) (“The IDEA does not itself articulate any
specific level of educational benefits that must be provided through an IEP.” (internal quotation
marks omitted)), aff’d sub nom. J.C. v. Katonah-Lewisboro Sch. Dist., 690 F. App’x 53 (2d Cir.
2017). The Supreme Court recently explained that “[f]or children receiving instruction in the
regular classroom, this would generally require an IEP reasonably calculated to enable the child
to achieve passing marks and advance from grade to grade.” Endrew F., 137 S. Ct. at 996
(internal quotation marks omitted). But, for “a child who is not fully integrated in the regular
classroom and not able to achieve on grade level . . . his [or her] IEP . . . must be appropriately
ambitious in light of his [or her] circumstances.” Id. at 1000. In other words, an IEP “providing
merely more than de minimis progress from year to year” is insufficient, id. at 1001 (italics and
internal quotation marks omitted), but, it also need not “furnish[] . . . every special service
necessary to maximize each handicapped child’s potential,” Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 199 (1982), or “provide[] everything
that might be thought desirable by loving parents,” S.C., 175 F. Supp. 3d at 250. Moreover,
“[b]ecause the law expresses a strong preference for children with disabilities to be educated, ‘to
the maximum extent appropriate,’ together with their non-disabled peers, special education and
related services must be provided in the least restrictive setting consistent with a child’s needs,”
and “[o]nly ‘when the nature or severity’ of a child’s disability is such ‘that education in regular
classes with the use of supplementary aids and services cannot be achieved satisfactorily’ should

30

a child be segregated.” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)
(quoting 20 U.S.C. § 1412(5); id. § 1401(a)).
“[The] IDEA also provides a variety of procedural safeguards with respect to the
provision of [a FAPE] by school districts.” Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of
Educ., 397 F.3d 77, 81–82 (2d Cir. 2005) (internal quotation marks omitted); see also 20 U.S.C.
§ 1415 (listing safeguards). “[A]dequate 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.” Rowley, 458 U.S. at 206. On the other hand, not “every procedural error in the
development of an IEP renders that IEP legally inadequate under the IDEA,” A.C. ex rel. M.C. v.
Bd. of Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009), although
“[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the
violations considered individually do not,” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2d
Cir. 2012). Specifically, a procedural violation violates the IDEA only if it
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the
decisionmaking process regarding the provision of a free appropriate public
education to the parents’ child; or
(III) caused a deprivation of educational benefits.
Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525–26 (2007) (internal
quotation marks omitted).
In New York, if a parent believes that his or her child is being denied a FAPE, the parent
may request 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 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

31

challenged in either state or federal court, see 20 U.S.C. § 1415(i)(2)(A). See also L.O., 822 F.3d
at 103 (describing the appeal process).
B. Standard of Review
The Court’s inquiry under the IDEA is limited to addressing (1) whether the District
“complied with the procedures set forth in the Act” and (2) whether the IEP “developed through
the Act’s procedures [was] reasonably calculated to enable the child to receive educational
benefits.” Rowley, 458 U.S. at 206–07. 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); G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 751
F. Supp. 2d 552, 570 (S.D.N.Y. 2010) (same), aff’d, 486 F. App’x 954 (2d Cir. 2012). Instead,
summary judgment in IDEA cases is “in substance an appeal from an administrative
determination, not a summary judgment.” Lillbask, 397 F.3d at 83 n.3 (internal quotation marks
omitted); see also G.B., 751 F. Supp. 2d at 570 (same). The Court’s review therefore “requires a
more critical appraisal of the agency determination than clear-error review but falls well short of
complete de novo review.” L.O., 822 F.3d at 108 (internal quotation marks and italics omitted).
Accordingly, the Court must “engage in an independent review of the administrative record and
make a determination based on a preponderance of the evidence.” M.H. v. N.Y.C. Dep’t of
Educ., 685 F.3d 217, 240 (2d Cir. 2012) (internal quotation marks omitted).
However, 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. “To the contrary, federal courts reviewing administrative decisions
must give due weight to these proceedings, mindful that the judiciary generally lacks the

32

specialized knowledge and experience necessary to resolve persistent and difficult questions of
educational policy.” M.H., 685 F.3d at 240 (internal quotation marks omitted). However, to
merit deference, the IHO’s and SRO’s decisions must be “thorough and careful.” S.C., 175 F.
Supp.3d at 252 (internal quotation marks omitted). The quality of the decision can be judged on
factors such as whether it is “well-reasoned” and “based on substantially greater familiarity with
the evidence and the witnesses than the reviewing court.” R.E., 694 F.3d at 189 (internal
quotation marks omitted); L.O., 822 F.3d at 109 (“To merit deference, the SRO’s or IHO’s
factual findings must be reasoned and supported by the record.” (alteration and internal quotation
marks omitted)). 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.
Where, as here, the IHO and SRO reach contrary conclusions, “reviewing courts are not
entitled to adopt the conclusions of either state reviewer according to their own policy
preferences or views of the evidence; courts must defer to the reasoned conclusions of the SRO
as the final state administrative determination.” Id. at 246; see also A.C., 553 F.3d at 171 (noting
that “[i]f the SRO’s decision conflicts with the earlier decision of the IHO, the IHO’s decision
may be afforded diminished weight,” because the court must “defer to the final decision of the
state authorities” (internal quotation marks omitted)). However, if the Court concludes that
the SRO’s determinations are insufficiently reasoned to merit . . . deference, and in
particular where the SRO rejects a more thorough and carefully considered decision
of an IHO, it is entirely appropriate for the court, having in its turn found the SRO’s

33

conclusions unpersuasive even after appropriate deference is paid, to consider the
IHO’s analysis.
M.H., 685 F.3d at 246. Therefore, this 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.” R.E., 694 F.3d at 189;
see also C.L. v. N.Y.C. Dep’t of Educ., No. 12-CV-1676, 2013 WL 93361, at *5 (S.D.N.Y. Jan.
3, 2013) (“[T]he Second Circuit [has] explained that the deference owed to an SRO’s decision
depends on the quality of that opinion, or its persuasiveness.” (citation and internal quotation
marks omitted)), aff’d, 552 F. App’x. 81 (2d Cir. 2014).
C. Analysis
Plaintiffs argue that Defendant failed to provide S.N. with a FAPE for the 2015-16 school
year for several reasons. The gravamen of their position is that the District waited to begin its
evaluation of S.N. until signing the stipulation of settlement for the previous year, resulting in
rushed evaluations producing erroneous scores and a failure to obtain information regarding how
S.N. would function in a general education classroom, including through classroom observation
and speaking with Windward teachers. (Pls.’ Mem. 16–18.) Plaintiffs therefore argue that
S.N.’s August 2015 IEP was both procedurally and substantively deficient. (Id.)
1. Exhaustion
As a threshold matter, Defendant argues that the Court lacks subject matter jurisdiction
over some of Plaintiffs’ claims because Plaintiffs failed to cross-appeal them to the SRO. (Def’s
Mem. 12.) Specifically, Plaintiffs did not cross-appeal the IHO’s findings that the
characterization of S.N.’s disability as “mild” did not affect her recommended IEP, (IHO
Decision 18), and that the District reviewed Dr. Tagliareni’s recommendations in her
neuropsychological report, even if it did not adopt them, (id. at 19). (Def.’s Mem. 12). The SRO
34

therefore concluded that the IHO’s findings on these issues “have become final and binding on
the [P]arties.” (SRO Decision 11.) 8
It is true that “an IHO’s decision is ‘binding’ upon the parties absent an appeal to the
SRO.” D.N. v. New York City Dep’t of Educ., 905 F. Supp. 2d 582, 587 (S.D.N.Y. 2012)
(quoting N.Y. Comp. Codes R. & Regs. (“N.Y.C.R.R.”) tit. 8, § 20.5(j)(5)(v)); see also C.H. v.
Goshen Cent. Sch. Dist., No. 11-CV-6933, 2013 WL 1285387, at *9 (S.D.N.Y. Mar. 28, 2013)
(“[I]ssues that were decided by the IHO and not appealed or cross-appealed by the party against
which they were decided are binding against that party, and on the SRO and th[e] [c]ourt, as to
that party.”). “However, it does not necessarily follow that a party who does not cross-appeal a
favorable IHO decision is precluded from asserting alternative grounds upon which a reviewing
court might sustain or reinstate the IHO’s judgment.” D.N., 905 F. Supp. 2d at 587. Indeed,
only a “party aggrieved by the findings and decision rendered in [an impartial] hearing may
appeal such findings and decision to [the SRO].” 20 U.S.C. § 1415(g) (emphasis added); 8
N.Y.C.R.R. § 200.5(k)(1) (same). Plaintiffs were not “aggrieved” by the IHO’s decision; rather,
they prevailed at the impartial hearing, where the IHO agreed that S.N. was denied a FAPE for
the 2015-16 school year and ordered the District to reimburse Plaintiffs for that year of
Windward tuition. (IHO Decision 21, 26.) That Plaintiffs disagreed with some of the IHO’s
reasoning does not change the result; thus, there was nothing for Plaintiffs to appeal. See D.N.,

8

To the extent Defendant also believes other claims were unexhausted, it fails to identify
them in this labeled portion of its counseled brief. (Def’s Mem. 12.) See Palmieri v. Lynch, 392
F.3d 73, 87 (2d Cir. 2004) (“[The plaintiff] failed to . . . raise this argument in his opposition to
summary judgment. Thus, this argument has been waived.”); Sioson v. Knights of Columbus, 303
F.3d 458, 460 (2d Cir. 2002) (“Perhaps counsel for [the] [a]ppellant intends that we form an
argument for him, by looking into the record to document the ‘facts’ posited in his ‘statement of
the case,’ and then examining various combinations of these facts in the light of the legal
doctrines he later mentions. But that is simply not our job, at least in a counseled case.”).
35

905 F. Supp. 2d at 588 (finding that a parent who “received precisely the relief she sought:
reimbursement for the [s]tudent’s unilateral placement at” a private school, “was not aggrieved,
and she ‘had neither the responsibility nor the right’ to cross-appeal any portions of the IHO’s
decision” (quoting Antkowiak by Antkowiak v. Ambach, 838 F.2d 635, 641 (2d Cir. 1988)); R.B.
ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 415–16 (S.D.N.Y. 2000)
(holding that the “[p]laintiff was not required to appeal the hearing officer’s decision” because
she “prevailed at the impartial hearing” and received the relief requested, even though the
defendant argued that “she did not entirely agree with the decision of the hearing officer”).
Therefore, the Court does not lack jurisdiction and will consider these arguments as potential
alternate grounds for reversing the SRO’s decision and upholding the IHO’s decision.
2. Procedural Adequacy
Plaintiffs argue that Defendant committed procedural violations in formulating S.N.’s
August 2015 IEP which rendered it substantively inadequate. (Pls.’ Mem. 19–23.) Specifically,
they contend that the evaluative information before the CSE was insufficient, because the CSE
(1) relied on Dr. Greenwell’s incorrectly scored psychoeducational evaluation; (2) ignored Dr.
Tagliareni’s private neuropsychological evaluation; and (3) did not conduct a required classroom
observation. (Id.)
When developing a student’s IEP, a CSE must review “existing evaluation data on the
child, including (i) evaluations and information provided by the parents of the child; (ii) current
classroom-based, local, or State assessments, and classroom-based observations; and (iii)
observations by teachers and related service providers.” 20 U.S.C. § 1414(c)(1)(A). This
includes “the results of the initial evaluation or most recent evaluation of the child,” id.
§ 1414(d)(3)(A)(iii), and any independent educational evaluation obtained at a parent’s expense,

36

see 34 C.F.R. § 300.502(c). “[O]n the basis of that review, and input from the child’s parents,”
the CSE must then “identify what additional data, if any, are needed to determine,” among other
things, “the educational needs of the child,” “the present levels of academic achievement and
related developmental needs of the child,” “whether the child needs special education and related
services,” and “whether any additions or modifications to the special education and related
services are needed to enable the child to meet the measurable annual goals set out in the [IEP]
. . . and to participate, as appropriate, in the general education curriculum.” 20 U.S.C.
§ 1414(c)(1)(B). “The CSE has the discretion to determine that no new evaluation is required.”
D.M. v. City Sch. Dist. of the City of New York, No. 15-CV-1619, 2016 WL 319859, at *5
(S.D.N.Y. Jan. 26, 2016); see also 20 U.S.C. § 1414(c)(4)(B) (stating that if the CSE
“determine[s] that no additional data are needed . . . to determine the child’s educational needs,
the [CSE] . . . shall not be required to conduct such an assessment unless requested by the child’s
parents”). “In other words, any additional assessments need only be conducted if found
necessary to fill in gaps in the initial review of existing evaluation data.” C.R. v. New York City
Dep’t of Educ., 211 F. Supp. 3d 583, 607 (S.D.N.Y. 2016) (alteration and internal quotation
marks omitted). “Unless the CSE identifies such a ‘gap,’ or the parents and district agree
otherwise, the IDEA requires only that a child with a disability be evaluated at least once every
three years, and not more frequently than once a year.” Id. (citing 20 U.S.C. § 1414(a)(2)(B);
8 N.Y.C.R.R. § 200.4(b)(4)).
With these background rules in mind, the Court will address each purported procedural
violation separately, as well as their cumulative effect.

37

a. Incorrect Psychoeducational Evaluation
Plaintiffs first argue that the August IEP was invalid because it was based upon Dr.
Greenwell’s incorrectly scored psychoeducational evaluation, which was not re-scored until after
the 2015-16 school year began. (Pls.’ Mem. 19–22.) The SRO agreed with the IHO that the
District’s reliance on Dr. Greenwell’s erroneous report was a procedural error. (SRO Decision
12, 17; IHO Decision 17.) Specifically, the SRO noted that, because S.N.’s performance was
compared with a student who was one year older than her—that is, ten years, six months rather
than nine years, six months—“the August 2015 IEP mischaracterized multiple aspects of [her]
performance.” (SRO Decision 15.) These aspects included misidentifying her performance on
one subtest as “borderline” when it was actually “low average,” and other scores as “low
average” when they were actually “average” and, in one case, an “average” score was actually
“superior.” (Id.; compare Pl.’s Ex. M (original report) with SD Ex. 18 (revised report).)
However, the SRO concluded that these errors did not render S.N.’s IEP invalid, because “the
IEP reflected information from a variety of sources,” and Plaintiffs “do not allege any specific
harm caused by the inaccurate scores,” “nor do they contend that the incorrect scoring” hindered
their ability to participate in the CSE meeting. (SRO Decision 18.) The Court agrees.
A New York regulation governing formulation of IEPs requires that “evaluation materials
used to assess a student . . . are used for purposes for which the assessments or measures are
valid and reliable” and “are administered by trained and knowledgeable personnel.”
8 N.Y.C.R.R. § 200.4(b)(6)(i)(b), (c). Citing this provision, Plaintiffs argue that “[a]n IEP that is
based upon erroneous test scores cannot be considered valid.” (Pls.’ Mem. 19.) Plaintiffs cite no
cases applying this regulation, and the Court was unable to find any. In any event, Defendant
does not contest that the scores were erroneous and improperly considered in the IEP. That

38

proposition alone, however, does not mean that recitation of these scores in the IEP rendered it
substantively inadequate or that the District was required to conduct a new evaluation prior to
formulating the IEP. As the SRO noted, Plaintiffs do not identify what harm was caused by the
inclusion of these scores in the IEP. (SRO Decision 18.) Plaintiffs do not argue, for example,
that Dr. Greenwell reported one of the erroneous scores as higher than it should have been,
causing the IEP to recommend diminished or no educational support in that testing area. Nor
could they, in light of the evidence in the record that, when recalculated correctly, S.N.’s scores
in many areas went up. (Compare Pls.’ Ex. M (original report) with SD Ex. 18 (revised report)
(showing increase in General Intellectual Ability score, Comprehension-Knowledge standard
score, Thinking Ability score, Visual Auditory learning, Retrieval Fluency, Visual-Spatial
Thinking, Picture Recognition, Auditory Processing, Fluid reasoning, Cognitive Efficiency
Processing Speed, Short-Term Memory, Working Memory); see also Tr. 271–74 (Dr. Greenwell
testifying that the change “resulted in . . . a slight increase in [S.N.’s] standard scores in each of
[the] areas that were assessed” but that S.N.’s cognitive “profile of strengths and weaknesses
remained consistent”); id. at 781–84 (Dr. Tagliareni testifying that the changed scores “are
statistically significantly different” and “describing a very different child in terms of cognitive
potential and intellectual functioning,” but identifying places where S.N.’s scores improved to
support that interpretation); SD Ex. 5 at 37 (noting in November 2015 CSE minutes that S.N.’s
scores “improved”). In other words, the initial results overstated S.N.’s difficulties, because they
were comparing her scores to a child a year older than her, and thus an IEP based on those scores
should have recommended more intensive, not less intensive, educational programming.
Plaintiffs argue that Defendant may not rely on the fact that S.N.’s scores improved,
because it cannot use “retrospective testimony” to rehabilitate an otherwise invalid IEP. (Pls.’

39

Mem. 19–21.) However, the cited cases are inapposite. In R.E. v. New York City Department of
Education, 694 F.3d 167 (2d Cir. 2012), the Second Circuit held that a defendant may not use
“retrospective testimony”—that is, “testimony that certain services not listed in the IEP would
actually have been provided to the child if he or she had attended the school district’s proposed
placement”—to later amend or rehabilitate a deficient IEP. Id. at 185. Instead, the Second
Circuit limited appropriate retrospective testimony to “testimony regarding the services
described in the [IEP],” id. at 174, excluding “additional services beyond those listed in the IEP,”
id. at 186. The reason for this decision, the Second Circuit explained, is that
parents must have sufficient information about the IEP to make an informed
decision as to its adequacy prior to making a placement decision. At the time the
parents must choose whether to accept the school district recommendation or to
place the child elsewhere, they have only the IEP to rely on, and therefore the
adequacy of the IEP itself creates considerable reliance interests for the parents.
Under the Department [of Education]’s view, a school district could create an IEP
that was materially defective, causing the parents to justifiably effect a private
placement, and then defeat the parents’ reimbursement claim at a [impartial
hearing] with evidence that effectively amends or fixes the IEP by showing that the
child would, in practice, have received the missing services. The Department’s
view is incorrect. By requiring school districts to put their efforts into creating
adequate IEPs at the outset, IDEA prevents a school district from effecting this type
of “bait and switch,” even if the baiting is done unintentionally. A school district
cannot rehabilitate a deficient IEP after the fact.
Id. at 186. The Second Circuit reaffirmed the bar on retrospective testimony in Reyes ex rel R.P
v. New York City Department of Education, when it held that an “SRO’s reliance on testimony
that [an] IEP could be modified to extend [a] paraprofessional’s services was improper under
R.E.” 760 F.3d 211, 220 (2d Cir. 2014). Again, the Second Circuit explained that “[i]f [a]
school district were permitted to rely on the possibility of subsequent modifications to defend the
IEP as originally drafted, then it could defeat any challenge to any IEP by hypothesizing about
what amendments could have taken place over the course of a year,” which “would create

40

significant uncertainty” for parents evaluating “what special education and related services the
child would actually receive” before deciding what school to place them in. Id. at 220–21.
Simply put, Defendant is not offering, and the SRO did not rely on, such impermissible
retrospective testimony here. See M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 142–
43 (2d Cir. 2013) (rejecting argument that the SRO “relied upon impermissible retrospective
justifications to fill in the IEP’s inadequacies” because the defendant “admit[ted] there was” a
procedural violation, and “the SRO did not rely upon a promise not contained in the IEP to
address the omission”). Defendant is not arguing that the IEP includes additional services not
listed, or even that it relied on other evaluative materials not listed. Nor is Defendant arguing
that the revised IEP in November 2015 “cured” the procedural defect in the August 2015 IEP.
Rather, Defendant argues, and the SRO found, that the CSE relied on several sources of
evaluative information about S.N.’s functioning in fashioning her IEP, and that the inclusion of
the incorrect scores from Dr. Greenwell’s report, which actually overstated S.N.’s functional
limitations, did not render the IEP substantively insufficient. (E.g., Tr. 77–79 (Snider testifying
that Dr. Greenwell’s “scores were incorrect” but that the CSE considered other psychological
evaluations, and “[p]utting it altogether” the CSE got a “nice cognitive profile” of S.N.); id. at
334 (Dr. Greenwell testifying that “I don’t believe that our understanding of who S.[N.] was as a
learner was influenced significantly by these slight changes in scores because we also were
taking into consideration the two private evaluations”); id. at 338 (Greenwell testifying that
S.N.’s strength in processing speed and weakness in memory and working memory “was
consistent between the two [CSE] meetings,” it was “just that the percentiles changed”). See
M.W., 725 F.3d at 143 (“When the IEP suffers from a conceded procedural infirmity, we first
review whether that procedural violation substantively deprived the student of a FAPE before

41

determining whether the SRO corrected the substantive failure by impermissibly crediting future
promises.”) Plaintiffs cite no case holding otherwise. 9 Nor did the IHO provide a rationale or
supporting caselaw for her finding that the rescoring of Dr. Greenwell’s report “needed to have
been done prior to making the recommendation” for S.N.’s IEP. (IHO Decision 17.) See T.F. v.
N.Y.C. Dep’t of Educ., No. 14-CV-3401, 2015 WL 5610769, at *4 (S.D.N.Y. Sept. 23, 2015)
(“[T]he CSE is not required to conduct updated evaluations where it has sufficient evaluative
materials reflecting the student’s present level of performance.”).
Plaintiffs also suggest that the IEP was invalid because Dr. Greenwell’s evaluation relied
on “age-driven assessments,” so the use of an incorrect birth year rendered the resulting data
inaccurate. (Pls.’ Mem. 21.) They cite Dr. Tagliareni’s testimony, as did the IHO, (IHO
Decision 17), that the original Dr. Greenwell evaluation and the corrected one “are statistically
significantly different,” (Tr. 781). However, contrary to Plaintiffs’ assertion that this testimony
showed “a greater disparity in S.N.’s deficits” from rescoring, (Pls.’ Mem. 21), Dr. Tagliareni
testified that the two IQ tests were “probably” calculated with different birthdates, which
“describ[e] a very different child in terms of cognitive potential and intellectual functioning.”
(Tr. 782.) She went on to explain that “if there were programs or any kind of recommendations
based upon the incorrect birthdate,” discrepancies between Plaintiff’s potential, based on her IQ,
and her test performance, “would not be as large as the discrepancies with the corrected
birthdate.” (Id. at 783–84 (emphasis added).) Put differently, if S.N. was actually an “average”
child but performed “low average” on a test, the discrepancy would be larger than if she was

9

Plaintiffs also assert that Defendant is incorrect, because the revised IEP’s
recommended program was more restrictive, indicating that the incorrect scores did affect the
recommendations in the August IEP. (Pls.’ Mem. 20 n.8.) However, the record shows that these
changes were made because of new input from S.N.’s Windward instructors, not the rescoring of
Dr. Greenwell’s report. (SD Ex. 5 at 37; Tr. 115–16, 194, 309–12, 563.)
42

considered below average and performed concomitantly in the low average range. (Id.) This
testimony, however, does not identify what recommendations in the IEP were affected by such a
potential discrepancy. In fact, it is not clear such a discrepancy existed, because Plaintiffs cite no
evidence suggesting S.N. had an “average” IQ but performed “low average” on a particular test
once Dr. Greenwell’s evaluation was rescored. (Cf. Tr. 272 (Dr. Greenwell testifying that S.N.’s
“cognitive profile that was indicated by both reports was a similar profile[,] [s]o the profile of
strengths and weaknesses remained consistent, just there were slight increases in the scores”); id.
at 339 (Dr. Greenwell testifying that knowing the variability in S.N.’s IQ scoring, she “still
believe[d]” that S.N. had “a mild disability”).)
In any event, as described above, the SRO conducted an exhaustive review of the
evaluative materials before the CSE and concluded that there was sufficient information about
S.N.’s functioning to craft an adequate IEP. (SRO Decision 16–19.) Plaintiffs do not contest
this finding, and instead argue only that the CSE did rely on Dr. Greenwell’s evaluation and it
was not corrected until after they had to decide where to place S.N. for the 2015-16 year. (Pls.’
Reply 2–3.) But, these facts are not tied to any specific recommendation in the IEP or to
Plaintiffs’ decision to enroll S.N. at Windward. Thus, in light of the SRO’s well-reasoned
opinion and Plaintiffs’ failure to identify a specific way in which Dr. Greenwell’s incorrect
scoring affected the recommendations in S.N.’s IEP, deprived her of educational benefits, or
somehow impeded Plaintiffs’ opportunity to participate in the decisionmaking process, the Court
agrees with the SRO that this procedural violation alone did not deny S.N. a FAPE for the 201516 year. See Winkelman, 550 U.S. at 525–26 (describing when a procedural violation violates
the IDEA); L.O., 822 F.3d at 109 (“[P]arents must articulate how a procedural violation resulted
in the IEP’s substantive inadequacy or affected the decision-making process.” (internal quotation

43

marks omitted)); R.C. ex rel. N.C. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., No. 07-CV2806, 2008 WL 9731053, at *13 (S.D.N.Y. Mar. 6, 2008) (holding that “purportedly false test
scores” did not render the IEP inadequate because the CSE addressed the student’s deficits
through other means), adopted, 2008 WL 9731174 (S.D.N.Y. July 7, 2008).
b. Dr. Tagliareni’s Evaluation
Plaintiffs also argue that because Dr. Greenwell’s evaluation was unreliable,
Dr. Tagliareni’s evaluation, including her recommendation for a full-time special education
program, was “the only legitimate psychoeducational recommendation upon which [the CSE]
could rely.” (Pls.’ Mem. 21; see also id. at 17 (same); Pls.’ Reply 3 (same).) The SRO found
that the CSE specifically reviewed Dr. Tagliareni’s 2014 evaluation, including the incorporated
social history, when it conducted a “historical review of [S.N.’s] performance across multiple
years and multiple school settings.” (SRO Decision 13.) However, the SRO rejected Plaintiffs’
contention that “the [D]istrict failed to give sufficient credence to the recommendations of” Dr.
Tagliareni—“an argument the IHO [also] rejected”—and instead concluded that “the evaluative
information available to the CSE . . . provided sufficient information . . . to develop her IEP.”
(Id. at 18–19; see also IHO Decision 19 (crediting Snider’s testimony that the CSE reviewed Dr.
Tagliareni’s evaluation, and explaining “[t]he fact that [the] [D]istrict did not adopt Dr.
Tagliareni’s recommendations does not mean [her report] was not given due consideration”).)
The Court agrees with the SRO and the IHO that the CSE’s treatment of Dr. Tagliareni’s report
did not constitute a procedural violation.
The IDEA “requires that a CSE actually review evaluative data and base the terms of the
student’s IEP on that information.” L.O., 822 F.3d at 110–11. This includes an independent
educational evaluation obtained by a parent “at private expense.” 34 C.F.R. § 300.502(c). It is

44

Defendant’s burden “to demonstrate which evaluative materials were reviewed during [the] CSE
meeting in reaching the terms of the IEP[].” L.O., 822 F.3d at 110. The IEP explicitly states that
“[a]ll evaluations were reviewed[,] including the private psychoeducational evaluation which
was completed in August of 2014.” (SD Ex. 4 at 24; see also id. at 26.) This is corroborated by
Snider’s testimony, which the IHO credited. (Tr. 171–72.) Furthermore, for each description of
S.N.’s functional performance and learning characteristics, the CSE cited the test or evaluation
on which it was basing its description. (S.D. Ex. 4 at 28–30.) In the meeting minutes, the CSE
noted that Sh.N. “wonder[ed] whether [S.N.] needs a small class setting all day like Windward,”
but the CSE explained that such a program “would be overly restrictive” in light of S.N.’s “mild
disability.” (Id. at 25.) Plaintiffs cite nothing in the record contradicting this evidence or
otherwise showing that the CSE ignored Dr. Tagliareni’s evaluation. See D.M., 2016 WL
319859, at *6 (rejecting as “factually incorrect” the plaintiffs’ argument that the CSE did not
consider an evaluation, based on testimony and the parties joint statement of acts); cf. L.O., 822
F.3d at 110 (explaining that it is a procedural violation when a CSE “fail[s] to memorialize how
it reached the terms of the IEPs,” leaving “reviewing authorities and courts . . . to speculate . . .
later as to how the CSE reached the terms of the child’s IEP”); S.Y. v. N.Y.C. Dep’t of Educ., 210
F. Supp. 3d 556, 573 (S.D.N.Y. 2016) (finding that the defendant failed to satisfy its burden of
proof because it “offered no evidence to substantiate its claim that the CSE gave due
consideration to an 8:1:3 classroom”).
Ultimately, Plaintiffs are arguing that the CSE did not adopt, or at least give enough
credence to, Dr. Tagliareni’s recommendation. However, the CSE was not required to do so, and
therefore, this cannot establish a procedural violation of the IDEA. See M.B. v. N.Y.C. Dep’t of
Educ., No. 14-CV-3455, 2017 WL 384352, at *6 (S.D.N.Y. Jan. 25, 2017) (finding no

45

procedural violation because the CSE did consider the evaluation in question and because it was
not “required to defer to the recommendations and evaluations proffered by the parents”); S.W. v.
New York Dep’t of Educ., 92 F. Supp. 3d 143, 158 (S.D.N.Y. 2015) (“Consideration does not
require substantive discussion, that every member of the CSE read the document, or that the CSE
accord the private evaluation any particular weight.” (citing T.S. v. Bd. of Educ. of Town of
Ridgefield, 10 F.3d 87, 89–90 (2d Cir. 1993)). 10 The CSE and hearing officers were not
required to accept Dr. Tagliareni’s recommendation merely because she is a private expert. See
G.W. v. Rye City Sch. Dist., No. 11-CV-8208, 2013 WL 1286154, at *19 (S.D.N.Y. Mar. 29,
2013) (“The Court is not at liberty to favor Dr. Scalzo’s opinion, a privately hired expert, over
the deference that should appropriately be accorded to the District in matters of educational
policy.”), aff’d, 554 F. App’x 56 (2d Cir. 2014); McCallion v. Mamaroneck Union Free Sch.
Dist., No. 10-CV-6207, 2013 WL 237846, at *10 (S.D.N.Y. Jan. 22, 2013) (rejecting argument
that “the SRO erred by relying too heavily on the evaluations and opinions of the District’s
witnesses while giving little or no weight to the conclusions of Parent’s experts” because the
court defers to the district, not to a private expert); Watson ex rel. Watson v. Kingston City Sch.
Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (“The mere fact that a separately hired expert
has recommended different programming does nothing to change this [outcome], as deference is
paid to the District, not a third party.”) aff’d, 142 F. App’x 9 (2d Cir. 2005). The Court may not
choose to adopt Dr. Tagliareni’s views instead of the CSE’s and therefore overturn the decision
of the SRO, which was the same as that of the IHO on this issue. See T.Y. v. N.Y.C. Dep’t of

10

Although not necessary to the Court’s decision, it is noteworthy that the August 2015
IEP incorporates Dr. Tagliareni’s recommendations for organization and classroom
modifications and aids—such as special seating, instructor monitoring of comprehension,
prompting, and extra time—as well as her observations about S.N.’s weaknesses in reading skills
and mathematics. (Compare SD Ex. 13 at 95–97 with id. Ex. 4 at 31–33.)
46

Educ., 584 F.3d 412, 418 (2d Cir. 2009) (noting that a district court may not “impermissibly
ch[o]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” (alteration and internal quotation marks omitted)); see also J.C. v. Katonah-Lewisboro
Sch. Dist., 690 F. App’x 53, 55 (2d Cir. 2017) (“The SRO was not required to automatically
accept the neuropsychologists’ recommendations as to class size, but he was required to consider
the recommendations and, if he rejected them, to convincingly explain why.”).
c. Classroom Observation
Plaintiffs also argue that the CSE failed to conduct a classroom observation of S.N. or
consult Windward staff. (Pls.’ Mem. 22–23.) The SRO agreed with the IHO that this constituted
a procedural violation. (SRO Decision 17.) However, the SRO concluded, after extensively
discussing the evaluations before the CSE, that “the hearing record establishes that the [D]istrict
considered evaluative information that provided a considerable amount of information regarding
[S.N.’s] functioning,” and thus “failure to obtain a classroom observation did not render [the
CSE] unable to develop an appropriate program.” (Id. at 18.) By contrast, the IHO found that
the failure to conduct a classroom observation rendered the IEP substantively inadequate,
because the IHO lacked information about S.N.’s functioning at Windward that would help
determine whether she was ready for a transition to a general education setting. (IHO Decision
15–16, 20–21.) In so concluding, the IHO relied on the fact that the CSE modified S.N.’s IEP to
be more restrictive after receiving input from Windward staff. (Id. at 16, 21.)
Plaintiffs urge the Court to adopt the IHO’s view, because a classroom observation or
input from S.N.’s teachers was necessary to evaluate S.N.’s performance in a general education
setting. (Pls.’ Mem. 22–23.) Plaintiffs do not challenge anything specific in the IEP’s

47

description of S.N.’s then-present levels of performance. (SD Ex. 4 at 26–31.) This description
was based upon S.N.’s test scores, observations during her various evaluations spanning from
2014 through 2015, and report cards from 2013, 2014, and 2015. (Id.) In S.N.’s report cards
from Solomon Schechter, she received no “below grade level expectations” marks; rather, as of
the end of the first semester of second grade, she was performing consistently in study habits and
meeting grade level expectations in all science and math areas except “know[ing] math facts to
20,” and “progressing toward grade level expectations” in the latter subcategory and all language
arts categories. (SD Ex. 17 at 121.) Her teacher observed that S.N. was engaged in class and
“able to follow all classroom routines,” but she “often hesitates before moving forward on a task
with confidence” and “sometimes need[s] additional clarification of directions” and “appreciates
clear expectations.” (Id.) S.N. also “benefits from an additional check-in after directions are
given.” (Id.) The report card further observes that S.N. “struggles with phonemic awareness and
decoding,” but the teacher believed “that as these skills continue to develop so will her literal and
inferential comprehension.” (Id.) Furthermore, S.N.’s “written expression is simplistic,
although her ability to expand her sentences is increasing.” As to math, the report card noted
that S.N. “does not yet have automatic recall of her math facts,” undermining her “flexibility and
confidence” in new math concepts, and “[h]er ability to understand, retain, and apply math
concepts and skills is weak,” but she “benefits from small group work and frequent
reinforcement” and still “participates eagerly during math class.” (Id. at 121–22.) As for S.N.’s
Windward progress report from the 2014-15 school year, the instructor observed that S.N.’s
decoding accuracy continued to improve in both the third and fourth quarters, as did her reading
fluency, although she still faced difficulty with inferential material and benefited from rereading.
(Id. at 130–31.) Moreover, the report noted that S.N. continued to make progress in applying

48

writing and spelling strategies taught to her, and was continuously more independent in her
writing. (Id. at 131.) In the fourth quarter, S.N. received only a limited number of scores of 3
(for “occasionally”) and 4 (for “rarely”) as relevant here: decoding vowel teams, identifying and
correcting run-on sentences, generating topic sentences, using transition words and phrases,
revising written work, editing for fragments and run-ons, solving word, money word, time word,
multiplication word, division word, measurement, geometry, and probability word problems by
using an appropriate strategy, multiplying whole numbers, comparing and ordering fractions,
determining equivalent fractions, collecting and recording data, identifying various geometric
figures, writing predictions for outcomes of events. (Id. at 127–138.) The rest of her scores
were “consistent[]” or “frequent[].” (Id.)
The CSE reviewed these report cards “in detail” and found it “clear again that there were
very specific areas of need, and that most of the majority of the scores were either . . . around
grade level or above.” (Tr. 196.) Therefore, the CSE deemed that S.N. had more strengths than
weaknesses and had only discrete areas of need, as opposed to a severe disability requiring
intensive special education services. (Id. at 93–94; SD Ex. 4 at 25.) Plaintiffs argue that the
CSE’s reliance on the Solomon Schechter report cards was inappropriate because they “did not
reflect [S.N.’s] present levels of performance or present ability to function in a classroom.”
(Pls.’ Reply 4 n.3.) However, these reports do support the CSE’s interpretation that S.N. benefits
from targeted instruction and skill building in a general education setting, and that she has
discrete areas of weaknesses rather than overarching problems precluding her progress in the
classroom. Contrary to Plaintiffs’ assertion, (id.), the portion of S.N.’s first grade report card
recommending “continued support and intervention” at a general education school, does not
undermine this conclusion, (SD Ex. 17 at 123). In fact, while Plaintiffs’ objection to the

49

relevance of these old report cards could be persuasive if the CSE did not rely on other, more
recent evaluative materials, that is not what occurred here. (See SD Ex 4 at 26.) Similarly,
Plaintiffs argue that Defendant erred in relying on S.N.’s Windward progress report, because it
“only reflected S.N.’s performance in a specialized setting” rather than a general education
setting. (Pls.’ Reply 3.) But, again, these scores show that S.N. progresses with targeted
instruction, that she already operates at an average or grade-appropriate level in many areas, and
that she has only specific weaknesses. Indeed, McNamara testified that, the Windward report
card showed that “when [S.N.] was directly instructed on a skill and she had time to practice it,
she was able to master it in most cases based on the one through four reporting system.” (Tr.
539; see also SRO Decision 13 (noting that “[w]hen a student has not been attending public
school, it is also appropriate for the CSE to rely on the assessments, classroom observations, or
teacher reports provided by the student’s nonpublic school”).) Plaintiffs cite nothing in the
report card tying S.N.’s progress to any specific intervention strategy used at Windward, or even
an area of difficulty, that the CSE failed to carry over into her IEP for 2015-16 school year. 11
Instead, after conducting an extensive analysis of the various evaluative materials
considered by the CSE, the SRO concluded that the failure to conduct a classroom observation
did not render the IEP substantively inadequate or otherwise deny S.N. a FAPE. (SRO Decision
at 18–19.) Rather than contest the adequacy of the other materials before the CSE, Plaintiffs
point to the fact that the CSE reconvened to intensify S.N.’s IEP in light of new information
from Windward. (Pls.’ Mem. 23.) However, the SRO found, and Plaintiffs do not contest, that

11

Plaintiffs also argue that because the District described the Windward progress reports
as “vague and unreliable” in arguing that Windward was not an appropriate unilateral placement,
the reports could not be used to justify the IEP recommendation. (Pls.’ Mem. 18; SRO Decision
8.) However, the IHO disagreed, and the SRO did not reach, let alone disrupt, that finding.
(IHO Decision 19.)
50

this new information was about S.N.’s performance during the 2015-16 school year, not the
2014-15 school year, and thus changes based upon this new information do not mean that the
August 2015 IEP was incorrect in its analysis of S.N.’s previous performance in the 2014-15
school year. (SRO Decision 12.) The Court agrees with this assessment of the record,
particularly in light of Plaintiffs’ failure to cite any contrary evidence in the record. The
November 2015 CSE minutes state that Windward representatives “gave feedback on the
student’s performance in school this year,” which Sh. N., present at the meeting, agreed with.
(SD Ex. 5 at 37.) The CSE then had a “discussion about [S.N.] needing more support given the
updated information,” and decided to switch to integrated co-teaching 4 hours daily and a
resource room, in addition to adding new math and writing goals in the IEP. (Id.; see also Tr.
115–16, 309–12, 563 (testifying that such changes were warranted by the statements of
Windward staff).) 12 Nothing about this new information rendered the existing information
before the August 2015 IEP so insufficient that the IEP denied S.N. a FAPE. Indeed, it is telling
that neither Plaintiffs nor the IHO cite any cases holding that the failure to conduct a classroom
observation alone renders an IEP substantively void. Therefore, while the CSE could have been
more thorough in conducting a classroom observation of S.N. at Windward before crafting her
2015-16 IEP, the Court defers to the SRO’s well-reasoned decision that this did not deny S.N. a

“[I]integrated co-teaching services . . . [are] a placement somewhere in between a
regular classroom and a segregated, special education classroom.” M.W., 725 F.3d at 144; see
also 8 N.Y.C.R.R. § 200.6(g) (“Integrated co-teaching services means the provision of specially
designed instruction and academic instruction provided to a group of students with disabilities
and nondisabled students.”). Plaintiffs do not explain, let alone cite anything in the record
showing, how these services are so dramatically different than the original consultant teacher
services provided in the August 2015 IEP such that the Court could understand how much more
severe the November 2015 IEP recommendation is. (See SD Ex. 4 at 24.) But, it is noteworthy
that even these services are not the full, immersive special education program that Dr. Tagliareni
suggested.
12

51

FAPE. See T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 169 (2d Cir. 2014)
(holding that the SRO’s decision that the school did not deny the student a FAPE for failing to
conduct an evaluation turned on “fact-specific educational questions [that] are precisely the type
of issue upon which the IDEA requires deference to the expertise of the administrative officers”
(internal quotation marks omitted)); S.Y., 210 F. Supp. 3d at 567 (finding a procedural violation
from the DOE’s failure to conduct additional evaluations, but deferring to the SRO’s conclusion
that the violation did not invalidate the IEP); T.C. v. N.Y.C. Dep’t of Educ., No. 15-CV-3477,
2016 WL 1261137, at *8 (S.D.N.Y. Mar. 30, 2016) (same, in context of failure to conduct a
triennial evaluation).
d. Cumulative Procedural Errors
Finally, although Plaintiffs do not press this point, the Court considers the cumulative
effect of Defendant’s procedural errors in designing S.N.’s IEP. See R.E., 694 F.3d at 190
(“Multiple procedural violations may cumulatively result in the denial of a FAPE even if the
violations considered individually do not.” (citation omitted)). The SRO found that the record
did not show that the procedural violations cumulatively resulted in a denial of a FAPE to S.N.
(SRO Decision 18.) Specifically, the SRO noted that the IEP was based on numerous evaluative
sources and Plaintiffs do not allege a specific harm from the procedural violations in the form of
a flawed or absent recommendation in the IEP or an effect on their participation in the drafting of
S.N.’s IEP. (Id. at 18–19.) The Court agrees.
Although the CSE relied on Dr. Greenwell’s incorrectly scored report and did not
conduct a classroom observation or obtain the participation of Windward teachers at the August
2015 CSE meeting, these errors did not impede S.N.’s right to a FAPE, significantly impede
Plaintiffs’ participation in the decisionmaking process, or deprive S.N. of educational benefits.

52

See Winkelman, 550 U.S. at 525–26. Indeed, the Court has not identified any of the procedural
errors as “serious.” L.O., 822 F.3d at 123. In any event, this is not a case in which Defendant
“displayed a pattern of indifference to the procedural requirements of the IDEA and carelessness
in formulating [S.N.’s] IEPs over the period of many years, repeatedly violating its obligations
under the statute, which consequently resulted in the deprivation of important educational
benefits to which [S.N.] was entitled by law.” Id. at 124; cf. S.Y., 210 F. Sup. 3d at 575 (“The
[defendant] failed to meet a cascade of statutory deadlines and consistently disregarded the role
of parents in the IDEA decisionmaking process.”). Nor do Plaintiffs cite any evidence in the
record showing that the CSE did not “meaningfully consider[] [its] proposed placement.” S.Y.,
210 F. Supp. 3d at 575. Additionally, this is not an instance where the CSE “failed to
memorialize how it reached the terms of the IEP[],” such that the “cumulative effect” of the
procedural errors “was to stifle administrative and judicial review of the CSE’s decisionmaking
and” any substantive challenge to the IEP. Id. at 576 (internal quotation marks omitted). Indeed,
the procedural violations found to violate the IDEA in the Second Circuit have been either more
numerous or more severe than the ones here. See id. (collecting “comparable cases”).
Therefore, the Court declines to find that these procedural violations cumulatively violated the
IDEA.
3. Substantive Adequacy
Finally, Plaintiffs argue that the August IEP was substantively deficient because the CSE
did not have an adequate basis to determine whether S.N. could make progress in a mainstream
general education classroom. (Pls.’ Mem. 23–24.) Construing their Motion generously, they
specifically rely on the procedural violations described earlier, as well as the fact that S.N.
“regressed” when they attempted to mainstream her at Solomon Schechter and only progressed

53

at Windward with intensive special education supports. (Id.) The IHO agreed with Plaintiffs,
finding that there was “no discussion” about how S.N. would transition from a full-time
specialized program to a general education setting, even though S.N. had previous difficulties
with attention, confidence, anxiety, and academic success at Solomon Schechter, and thus the
IEP denied her a FAPE. (IHO Decision 20–21.) By contrast, the SRO found that the IEP was
substantively adequate, analyzing the CSE’s basis for the recommended programs in the IEP, the
testimony of various District personnel and Dr. Tagliareni, S.N.’s report cards, and Plaintiffs’
shifting descriptions of the severity of S.N.’s issues at Solomon Schechter. (SRO Decision 19–
22.) The Court defers to the thorough, better reasoned decision of the SRO and agrees that the
IEP was “reasonably calculated to enable [S.N.] to make progress appropriate in light of [her]
circumstances.” Endrew F., 137 S. Ct. at 1000.
As described earlier, the SRO engaged in an exhaustive discussion of the evidence
supporting the IEP’s recommendation of a resource room and consultant teacher services, plus
supplementary aids and services. The SRO specifically addressed Sh. N.’s concern, voiced at the
CSE meeting, that S.N. required a “small group setting” by recounting the testimony of CSE
chairperson Snider, the District’s special education teacher and June 2015 educational evaluator,
the District’s school psychologist, and the District’s speech language pathologist, all of whom
testified that the specific recommendations in the IEP would meet S.N.’s educational needs by
providing targeted instruction and skill building that she could practice, with accommodations, in
the classroom. (SRO Decision 19–20.) Aside from citing Dr. Tagliareni’s recommendation,
Plaintiffs offer no evidence contradicting this testimony. (Pls.’ Mem. 23–24.) But, as explained
earlier, the Court owes deference to the District, not to Dr. Tagliareni just because she is an
“expert.” See G.W., 2013 WL 1286154, at *19 (“The Court is not at liberty to favor [the]

54

opinion [of] a privately hired expert, over the deference that should appropriately be accorded to
the District in matters of educational policy.”). This is particularly true where the SRO explicitly
discredited Dr. Tagliareni’s recommendation as evincing a “lack of familiarity with the [D]istrict
public school programs,” because she assumed a general education program would not permit
S.N. enough time for word processing while reading—an assumption that was contradicted by
the “consistent testimony of the [D]istrict witnesses” that such a modification could be
implemented in the classroom and would address S.N.’s specific weaknesses as seen in testing.
(SRO Decision 21–22.) See T.Y., 584 F.3d at 418 (noting that a district court may not
“impermissibly ch[o]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” (alteration and internal quotation marks omitted)).
Additionally, the SRO disagreed with the IHO’s conclusion that “the CSE had no basis to
believe [S.N.] would be able to make progress in a general education environment,” pointing to
S.N.’s progress “towards grade level expectations in all areas” within language arts subjects and
performance “at grade level in three of the four subskills” in math. (SRO Decision 21.) The
SRO noted S.N.’s identified struggles with phonemic awareness, decoding, and math facts, but
the report card stated that S.N.’s “literal and inferential comprehension would also improve”
with growth in these skills, something which is reflected in the IEP recommendations and annual
goals. (Id.) Plaintiffs do not identify what about these observations is specific to a specialized
environment and could not apply to S.N.’s IEP recommendations in a general classroom.
Instead, Plaintiffs argue that S.N. “was unsuccessful and . . . regressed” in a mainstream
classroom at Solomon Schechter, (Pls.’ Mem. 23), but the SRO discounted that argument by
pointing to Sh. N.’s testimony that S.N. was only “pulled out” of class for support due to “mild

55

issues,” as opposed to “major red flags,” and was only “falling behind a little bit in the
curriculum.” (SRO Decision 21.) This testimony, the SRO observed, was much more subdued
than Plaintiffs’ representations to Dr. Tagliareni that S.N. had “struggled across several academic
domains” and had “regressed so much.” (Id.; see also SD Ex. 13 at 89.) Simply put, Plaintiffs
cite no evidence that S.N. regressed the only time she was enrolled in a mainstream classroom
environment. In fact, the Solomon Schechter report cards, described extensively earlier in this
Opinion, show quite the opposite. (See SD Ex. 17.)
The SRO also noted that the record contained “discrepant observations” regarding S.N.’s
attentiveness and confidence, citing the positive observations in the Solomon Schechter report
card and the June 2015 speech language evaluation and the less favorable observations in the
June 2013 classroom observation and 2014 psychological evaluation, and therefore concluded
that there was less “predictive validity” regarding how S.N. would react to a mainstream
classroom environment. (SRO Decision 20–21.) Aside from citing Dr. Tagliareni’s ADHD
diagnosis, Plaintiffs cite nothing in the record clearly showing that the CSE should have been
concerned about transitioning S.N. to a mainstream classroom environment. (Pls.’ Mem. 24.)
However, it is not clear why an ADHD diagnosis alone renders S.N. incapable of progressing in
a mainstream classroom, particularly with the accommodations in the IEP included to maintain
her attention. (SD Ex. 4 at 32–33.) Cf. Jennifer D. ex rel. Travis D. v. New York City Dep’t of
Educ., 550 F. Supp. 2d 420, 434 (S.D.N.Y. 2008) (finding IEP inappropriate for child with
ADHD because he “did not need to be removed from the community school environment
because he was capable of being educated in a school that also educated non-disabled students”).
Indeed, the SRO cited the observation on S.N.’s Windward report card that she had “welldeveloped social skills” and was “an active learner and frequent participant in literary activities.”

56

(SRO Decision 21.) And, the meeting minutes indicate that “[t]here was discussion about
[S.N.’s] anxiety and self[-]concept,” and it was “collaboratively” decided that “[i]f she begins to
show signs of emotional struggle in school,” she will meet with the school psychologist and, if
necessary, “counseling will be added to [her] IEP.” (SD Ex. 4 at 25.)
Ultimately, Plaintiffs rely only on the procedural violations and the fact that the CSE
reconvened to intensify S.N.’s IEP as evidence that the August 2015 IEP was substantively
inadequate. (Pls.’ Mem. 23–24.) The Court has already addressed those arguments and deferred
to the SRO’s rejection of them. Plaintiffs cite no additional cases or regulations requiring a CSE
to have a certain modicum of evidence regarding how a child will perform in a mainstream
classroom before recommending an IEP that would change the Court’s analysis. Rather, an IEP
must be “reasonably calculated to enable [S.N.] to make progress appropriate in light of [her]
circumstances.” Endrew F., 137 S. Ct. at 1000. It need not provide “every special service
necessary to maximize [S.N.]’s potential,” Rowley, 458 U.S. at 199, or “provide[] everything that
might be thought desirable by” Plaintiffs, her “loving parents,” S.C., 175 F. Supp. 3d at 250.
Here, the CSE found, in accordance with the law’s “strong preference” to educate children with
disabilities “together with their non-disabled peers” and to provide special education services “in
the least restrictive setting consistent with a child’s needs,” Walczak, 142 F.3d at 122 (internal
quotation marks omitted), that S.N.’s specific difficulties should be addressed in a mainstream
classroom environment with accommodations and supplemental resource room time, (SD Ex. 4
at 24–25). Because this is not a case in which the SRO’s decision upholding that view lacked
any basis in the record, the Court declines to overturn it. Cf. D.M., 2016 WL 319859, at *7–8
(finding IEP recommendation substantively deficient where the SRO cited “no evaluative
material to support the CSE determination,” including the adequacy of a community school as

57

opposed to small therapeutic school, and ignored the only testimony in the record regarding
school size). 13
III. ConclusionH
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied. The
Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No 11), enter
judgment for Defendant, and close this case. 15
SO ORDERED.
DATED:

September.a.5: 2018
White Plains, New York
ETHM.KA
E
UNI ED STATES DISTRICT JUDGE

13

Plaintiffs cite D.M, with no pincite, for the proposition that the Court should reject the
"conjectural" testimony of the District's witnesses because the basis of their knowledge was
clinical testing, not a classroom observation or assessment. (Pis.' Reply 9.) The case does not
support this proposition. See D.M, 2016 WL 319859, at *5-8 (holding that the IEP was
substantively inadequate, noting that the SRO "cite[d] no evaluative material to support" for the
IEP's recommendation ofa 12:1:1 class at a community school, whereas the IHO rejected the
DOE social worker's testimony in support of that placement because "there was no basis for her
belief' and instead credited a psychologist's testimony in support of a smaller class and school).
14

Because the Court concludes that Defendant did not deny S.N. a FAPE, it need not
reach Plaintiffs' argument that they are entitled to reimbursement for the tuition at Windward for
the 2015-16 school year. (Pis.' Mem. 25.)
15

Pursuant to the motion schedule suggested by Defendant-in which Plaintiff would file
a summary judgment motion to which Defendant would respond, obviating the need for crossmotions for summary judgment-and to which Plaintiff consented, the denial of Plaintiffs
Motion is the equivalent of granting summary judgment to Defendant. (See Dkt. Nos. 6-8.)
58