Reyes v. NYC Dept. of Educ., No. 13-158 (2d Cir. 2014)
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Plaintiff enrolled her son at a private school after she decided that the individualized education program (IEP) proposed by the DOE for the 2010-2011 school year failed to provide her son with a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. Plaintiff filed suit seeking tuition reimbursement, the IHO granted her relief, but the SRO reversed the decision, and the district court affirmed. The court deferred to the IHO's well-reasoned determination that the son required the services of a 1:1 paraprofessional for longer than the transitional three-month period afforded him by his IEP. Because the DOE failed to offer him a FAPE, the court reversed and remanded to the district court to consider the appropriateness of plaintiff's private placement and the balance of the equities.
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13 158 Reyes v. New York City Department of Education 1 UNITED STATES COURT OF APPEALS 2 3 4 FOR THE SECOND CIRCUIT 5 August Term, 2013 (Argued: November 6, 2013 Decided: July 25, 2014) 6 7 8 9 10 DOMINGA REYES, on behalf of and as Parent and Guardian of R.P., a student with a disability, 11 Plaintiff Appellant, 12 v 13 NEW YORK CITY DEPARTMENT OF EDUCATION, 14 Defendant Appellee.* 15 16 Docket No. 13 158 Before: SACK, HALL, and LIVINGSTON, Circuit Judges. 17 Appeal from a judgment of the United States District Court for the 18 Southern District of New York (William H. Pauley III, Judge) upholding a New 19 York State Review Officerʹs final administrative decision overturning an * The Clerk of the Court is respectfully directed to amend the official caption to conform to the caption set forth above. 1 Impartial Hearing Officerʹs award of tuition reimbursement under the 2 Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. Because we 3 conclude that the proposed individualized education program and school 4 placement failed to provide R.P. with the free appropriate public education 5 guaranteed to him by the Act, we REVERSE and REMAND to the district court 6 for further proceedings. 7 8 9 ERIN McCORMACK HERBERT (Michael D. Hampden, of counsel), Partnership for Childrenʹs Rights, New York, NY, for Appellant. 10 11 12 13 KATHY H. CHANG (Michael A. Cardozo, Corporation Counsel, and Larry A. Sonnenshein, of counsel), Corporation Counsel of the City of New York, New York, NY, for Appellee. 14 SACK, Circuit Judge: 15 The Individuals with Disabilities Education Act (ʺIDEAʺ) promises each 16 child with a disability a free appropriate public education (ʺFAPEʺ),1 20 U.S.C. 17 § 1400(d)(1)(A), which must be ʺreasonably calculated to enable the child to 18 receive educational benefits,ʺ Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). To 1 Glossary of Acronyms: As in M.H. v. New York City Department of Education, 685 F.3d 217 (2d Cir. 2012), ʺ[t]his opinion, dealing as it does with the IDEA and practices thereunder, is replete with acronyms. In addition to their definition in the text, a separate glossary of acronyms is therefore set forth in the Appendix to this opinion.ʺ Id. at 223 n.1. 2 1 fulfill this promise, the IDEA allows parents who think that their local school 2 district is not providing their child a FAPE to enroll the child in a private school 3 program unilaterally and thereafter seek reimbursement for the private school 4 tuition from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii). Deciding that the 5 individualized education program (ʺIEPʺ) proposed by the New York City 6 Department of Education (ʺDOEʺ) for the 2010 2011 school year failed to provide 7 her son a FAPE, Reyes enrolled him at the private Rebecca School in Manhattan 8 and brought a due process complaint seeking tuition reimbursement. An 9 impartial hearing officer (ʺIHOʺ) granted her relief, but a state review officer 10 (ʺSROʺ) reversed that decision on appeal. Reyes then filed a civil action in the 11 United States District Court for the Southern District of New York. The district 12 court (William H. Pauley III, Judge) affirmed the SROʹs decision. 13 Reyes appealed, arguing principally that the SRO relied on retrospective 14 testimony impermissible under R.E. v. New York City Department of Education, 694 15 F.3d 167, 186 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013). We reverse the 16 judgment and remand the cause to the district court for further proceedings. 17 18 19 STATUTORY BACKGROUND The Individuals with Disabilities Education Act requires all states receiving federal funds to provide ʺall children with disabilitiesʺ a ʺfree appropriate public 3 1 education,ʺ 20 U.S.C. § 1412(a)(1)(A), to ʺprepare them for further education, 2 employment, and independent living,ʺ id. § 1400(d)(1)(A). A FAPE consists of 3 ʺspecial education and related services tailored to meet the unique needs of a 4 particular child,ʺ Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 5 1998) (internal quotation marks omitted), which are ʺreasonably calculated to 6 enable the child to receive educational benefits,ʺ Rowley, 458 U.S. at 207, and 7 provided in conformity with an individualized education program, or IEP, 20 8 U.S.C. § 1401(9)(D). The IEP, which the school district is required to prepare 9 annually, must include the childʹs present levels of academic achievement and 10 functional performance, goals and objectives for the child, and the special 11 education and related services to be provided to the child so that he or she can 12 advance toward attaining those goals and objectives. 20 U.S.C. § 1414(d). Under 13 New York law, local Committees on Special Education (ʺCSEsʺ) are responsible 14 for developing appropriate IEPs. N.Y. Educ. Law § 4402(1)(b)(1). 15 Any parent who thinks that the school district is failing to provide his or 16 her child a FAPE may unilaterally enroll the child in a private school and seek 17 tuition reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii). 18 However, parents pursue this option at their financial risk: Reimbursement will 19 be granted only if (1) the proposed IEP failed to provide the student with an 4 1 appropriate public education; (2) the parentʹs private placement was appropriate 2 to the child s needs; and (3) equitable considerations support the parentʹs claim. 3 Sch. Comm. of Burlington v. Depʹt of Educ., 471 U.S. 359, 370, 374 (1985); see also 4 Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 16 (1993) (reaffirming 5 Burlington); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (reaffirming 6 Carter and Burlington). This analysis is also known as the Burlington/Carter test. 7 R.E., 694 F.3d at 185. 8 9 To seek tuition reimbursement, a parent must file a ʺdue process complaint,ʺ which entitles him or her to an ʺimpartial due process hearingʺ before 10 an IHO. 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1). Under New York 11 law, the school district bears the burden of proof, ʺincluding the burden of 12 persuasion and burden of production,ʺ to establish that its proposed IEP 13 provided the child a FAPE, while the parent bears the burdens of persuasion and 14 production regarding the appropriateness of the private placement. N.Y. Educ. 15 Law § 4404(1)©.2 But to the extent that a court ʺmust determine whether the state 2 Under New York law, [t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition 5 1 administrative decisions were supported by a preponderance of the evidence, 2 which party bore the burden of persuasion in the state review scheme is only 3 relevant if the evidence was in equipoise.ʺ M.H. v. N.Y.C. Depʹt of Educ., 685 F.3d 4 217, 225 n.3 (2d Cir. 2012). Either party may appeal the IHOʹs decision to an SRO, 5 N.Y. Educ. Law § 4404(2), whose determination may in turn be appealed by 6 bringing a civil action in either state or federal court, id. § 4404(3)(a); 20 U.S.C. 7 § 1415(i)(2)(A). 8 9 FACTUAL AND PROCEDURAL BACKGROUND Reyesʹs son, R.P., is a nineteen year old autistic student with deficits in 10 cognitive functioning; receptive, expressive, and pragmatic language abilities; 11 and fine and gross motor skills. In addition to autism, he has been diagnosed 12 with sensory integration dysfunction, moderate mental retardation, and 13 attention deficit/hyperactivity disorder. R.P.ʹs sensory needs are significant: If 14 he does not receive various kinds of sensory input at regular intervals 15 throughout the day (a ʺsensory dietʺ), he is unable to maintain control over his reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c). 6 1 behavior and may speak in a very loud voice, press on his eyes, rock his body 2 back and forth, knock over objects, or pace. 3 R.P. was sixteen years old during the 2010 2011 school year at issue and 4 had been attending the Rebecca School in Manhattan, ʺa therapeutic private 5 school for students with neurodevelopmental delays in relating and 6 communicating,ʺ since May 2007. Compl. ¶ 48. DOE paid for his placement at 7 the Rebecca School in the 2009 2010 school year pursuant to a November 19, 8 2010, IHO decision. 9 On May 17, 2010, a CSE meeting was convened to develop R.P. s IEP for 10 the 2010 2011 school year. Reyes, a DOE psychologist named Rose Fochetta, a 11 DOE special education teacher, and a parent member3 attended. R.P.ʹs then 12 teacher at the Rebecca School participated by telephone. To determine R.P. s 13 abilities and instructional needs, the CSE team considered a classroom 14 observation conducted on November 12, 2009; two psychological evaluations, 15 conducted on December 23, 2009, and January 26, 2010; and a May 2010 progress 3 New York law requires that the CSE include an ʺadditional parent,ʺ not employed by the school district, who resides in the area and whose child is either a student with a disability, a student formerly classified as disabled, or a disabled child who has recently graduated. N.Y. Educ. Law § 4402(1)(b)(1)(a). 7 1 report regarding R.P.ʹs performance at the Rebecca School for the 2009 2010 2 school year. 3 The IEP produced by the CSE team recommended that R.P. be placed in a 4 special ʺ6:1:1ʺ class (six students, one special education teacher, and one 5 classroom paraprofessional) with various related services, including occupational 6 therapy, speech and language therapy, physical therapy, and counseling. The 7 IEP also recommended that R.P. be assigned a one on one (ʺ1:1ʺ) 8 paraprofessional for three months ʺto ease the transitionʺ from private to public 9 school. 10 On or about June 15, 2010, DOE sent Reyes a Final Notice of 11 Recommendation offering R.P. a seat at P.S. 79. Reyes visited P.S. 79 on June 25, 12 2010, with Rebecca School occupational therapy supervisor Mary Wiener. On 13 that visit, Reyes and Wiener toured the school, observed two 6:1:1 classrooms, 14 spoke with classroom teachers and an occupational therapist, and visited the 15 therapy room and the cafeteria. Both classes that Reyes and Wiener observed 16 employed the TEACCH4 methodology, with students seated at individual 4 TEACCH is the acronym for a method of teaching autistic children called ʺTreatment and Education of Autistic and Related Communication Handicapped Children.ʺ See M.H., 685 F.3d at 259 (Appendix). For a description of the technique, see, for example, Autism Web: A Parentʹs Guide to Autism Spectrum Disorders, available at http://www.autismweb.com/teacch.htm (last visited July 8 1 workstations and working independently. Neither classroom teacher was 2 familiar with the term ʺsensory diet,ʺ a personalized regimen of activities that 3 provides the sensory input a child like R.P. requires to stay focused throughout 4 the day. Reyes and Wiener were also told that P.S. 79 did not have a ʺsensory 5 gym,ʺ a facility with specialized equipment that provides therapeutic sensory 6 inputs. They observed tables, mats, and balls, but no swings or other equipment 7 designed to create a sense of movement (referred to as ʺvestibularʺ equipment). 8 When Wiener asked about the absence of such equipment, she was told that the 9 school had none. As Wiener testified, she and Reyes were also told by a P.S. 79 10 occupational therapist that the school was ʺcurrently understaffed for 11 occupational therapists and that they were using contractors, but that not all of 12 the childrenʹs mandates were being met.ʺ Hearing Tr. at 258, J.A. 567. 13 Reyes ultimately rejected the proposed placement because she thought the 14 schoolʹs TEACCH methodology was not appropriate for R.P., the school did not 15 provide an adequate sensory diet or sensory equipment, the school did not 16 provide an adequate level of individual attention, and the school was unable to 17 meet R.P.ʹs related services mandate. On June 14, 2010, Reyes enrolled R.P. in a 18 ten month program at the Rebecca School for the 2010 2011 school year. 22, 2014). 9 1 Reyes filed the due process complaint that initiated this action on March 4, 2 2011. On April 29, 2011, the IHO issued an Order on Pendency requiring that 3 DOE pay R.P.ʹs tuition at the Rebecca School during the course of the litigation. 4 See 20 U.S.C. § 1415(j) (providing that ʺduring the pendency of . . . proceedings 5 . . . the child shall remain in the then current educational placement of the childʺ). 6 An impartial hearing was held over four days between April 28, 2011, and 7 July 21, 2011. At the hearing, Fochetta and Anne Duquette, a teacher at P.S. 79, 8 testified on DOEʹs behalf. Fochetta opined that R.P. ʺrequire[d] a lot of support,ʺ 9 but that DOEʹs proposed placement of a 6:1:1 class with a 1:1 transitional 10 paraprofessional a service that could have been ʺcontinue[d] . . . if it was 11 warrantedʺ ʺc[ould] promote progress.ʺ Hearing Tr. at 76, J.A. 359; id. at 74, J.A. 12 357. Duquette described how she implemented the TEACCH methodology in 13 her classroom and explained the tailored strategies that she would have 14 employed to meet R.P.ʹs particular needs. Hearing Tr. at 115 22, J.A. 398 405; id. 15 at 126 38, J.A. 409 21. 16 Reyes testified on her own behalf, as did five witnesses from the Rebecca 17 School. Tina McCourt, the Schoolʹs Program Director, detailed R.P.ʹs significant 18 sensory needs and expressed her skepticism that R.P. could make progress in a 10 1 6:1:1 class or if instructed using the TEACCH methodology. She also asserted 2 that terminating the transitional paraprofessionalʹs services after only three 3 months would confuse R.P. by ending a relationship upon which he had become 4 dependent. Wiener described and criticized the lack of sensory equipment 5 available at P.S. 79, while R.P.ʹs occupational therapist, speech pathologist, and 6 teacher at the Rebecca School further explained his needs and how the schoolʹs 7 staff met them. 8 9 The IHO concluded in a decision dated September 20, 2011, that DOE had denied R.P. a FAPE. She found that the 6:1:1 class was inappropriate to meet 10 R.P.ʹs needs and that it was ʺinsufficientʺ to augment that ratio by providing 1:1 11 paraprofessional support for three months only. IHO Decision, No. 132427, at 11 12 (Sept. 20, 2011), J.A. 198. Noting that DOEʹs argument that the paraprofessionalʹs 13 services could have been extended beyond three months was merely 14 ʺspeculative,ʺ the IHO declined to determine whether a 6:1:1 class with 1:1 15 paraprofessional support for the entire school year would have been sufficient. 16 Id. The IHO further found ʺno proof that the resources available at [P.S. 79] 17 would meet [R.P.ʹs] significant sensory needsʺ or that the TEACCH methodology 18 ʺ[wa]s individualized to meet [R.P.ʹs] needs.ʺ Id. at 12, J.A. 199. The IHO 19 concluded that R.P.ʹs placement at the Rebecca School was appropriate and that 11 1 there was no equitable impediment to tuition reimbursement. She therefore 2 ordered DOE to pay R.P.ʹs Rebecca School tuition. 3 On September 27, 2011, DOE appealed the IHO s decision to the New York 4 State Education Departmentʹs Office of State Review. On November 22, 2011, the 5 SRO overturned the IHOʹs decision, finding that DOE had offered R.P. a FAPE 6 for the 2010 2011 school year. The SRO found that the record did not support the 7 IHOʹs determination that the 6:1:1 class was inadequate to address R.P.ʹs needs, 8 and further determined that, even if the record established that R.P. required 1:1 9 paraprofessional services, the IEP could have been modified to provide those 10 services. In support of this conclusion, the SRO cited the testimony of Fochetta, 11 the DOE psychologist, that the CSE recommended three months of 1:1 12 paraprofessional support with the ʺunderstandingʺ that R.P.ʹs need for the 13 service would be reassessed and that the service would be extended as needed. 14 SRO Decision, No. 11 124, at 13 (Nov. 22, 2011), J.A. 180. The SRO also concluded 15 that Reyesʹs ʺconcerns regarding [P.S. 79ʹs] ability to address [R.P.ʹs] sensory 16 needs, and the appropriateness of the TEACCH methodology utilized . . . [were] 17 not supported by the preponderance of the evidence contained in the hearing 18 record.ʺ Id. at 18, J.A. 185. The SRO did not reach the IHOʹs findings regarding 12 1 the appropriateness of R.P.ʹs placement at the Rebecca School or the balance of 2 the equities. 3 Reyes appealed from the SROʹs decision to the United States District Court 4 for the Southern District of New York. The parties cross moved for summary 5 judgment. On December 11, 2012, following oral argument, the district court 6 upheld the conclusions of the SRO. Reyes v. N.Y.C. Depʹt of Educ., No. 12 Civ. 7 2113 (WHP), 2012 WL 6136493, 2012 U.S. Dist. LEXIS 175329 (S.D.N.Y. Dec. 11, 8 2012). The court concluded that although the SROʹs reliance on Fochettaʹs 9 testimony that the IEP could be modified was impermissible, the remainder of 10 the evidence supported his determination that the IEP was substantively 11 adequate. Id., 2012 WL 6136493 at *6, 2012 U.S. Dist. LEXIS 175329 at *16 *17. 12 The district court also upheld the SROʹs conclusions that P.S. 79 could meet R.P.ʹs 13 sensory needs and that the TEACCH methodology was appropriate for R.P., and 14 declared any burden shifting on the part of the SRO ʺinconsequential.ʺ Id., 2012 15 WL 6136493 at *5, *7 *8, 2012 U.S. Dist. LEXIS 175329 at *16, *19 *23. Because the 16 district court deferred to the SROʹs conclusion that R.P. had been offered a FAPE, 17 it did not consider the appropriateness of the Rebecca School placement or the 18 balance of the equities. Id., 2012 WL 6136493 at *8, 2012 U.S. Dist. LEXIS 175329 19 at *23. 13 1 Reyes appeals. 2 DISCUSSION 3 I. Standard of Review 4 A district courtʹs grant of summary judgment in an IDEA case is reviewed 5 de novo. A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009). After 6 conducting an independent review, this Court must base its decision on the 7 preponderance of the evidence, giving ʺʹdue weightʹʺ to the state administrative 8 decision because ʺthe judiciary generally ʹlack[s] the specialized knowledge and 9 experience necessary to resolve persistent and difficult questions of educational 10 policy.ʹʺ Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 113 (2d Cir. 2007) 11 (quoting Rowley, 458 U.S. at 206, 208). 12 In deciding what weight is due to an IDEA administrative decision, the 13 analysis often ʺwill hinge on the kinds of considerations that normally determine 14 whether any particular judgment is persuasive.ʺ M.H., 685 F.3d at 244. Such 15 considerations include the quality and thoroughness of the reasoning, the type of 16 determination under review, and whether the decision is based on the 17 administrative bodyʹs familiarity with the evidence and the witnesses. Id. ʺWhen 18 an IHO and the SRO reach conflicting conclusions, we defer to . . . the SROʹs 19 decision.ʺ R.E., 694 F.3d at 189 (internal quotation marks and brackets omitted). 14 1 But because the administrative decision makerʹs ʺfactual findings must be 2 ʹreasoned and supported by the recordʹ to warrant deference,ʺ M.H., 685 F.3d at 3 241 (quoting Gagliardo, 489 F.3d at 114), if a court concludes that an SROʹs 4 decision is inadequately reasoned, ʺa better reasoned IHO opinion may be 5 considered instead,ʺ R.E., 694 F.3d at 189. 6 II. Issues for Judicial Review 7 Reyes argues on appeal that the district court erred in finding that any 8 burden shifting by the SRO was ʺinconsequentialʺ and in deferring to the SROʹs 9 findings that (1) the 6:1:1 class with three months of 1:1 paraprofessional support 10 was substantively adequate, (2) P.S. 79 was capable of addressing R.P.ʹs sensory 11 needs, and (3) the TEACCH methodology was appropriate for R.P. 12 A. Burden Shifting 13 In New York, ʺthe local school board bears the initial burden of 14 establishingʺ the IEPʹs validity. Id. at 184; see N.Y. Educ. Law § 4404(1)©. The 15 IDEA, by contrast, is silent on the burden of proof; the Supreme Court has 16 interpreted the statute to place the burden of challenging an IEP on the party 17 bringing the challenge. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57 58 (2005). 18 It remains an open question whether states may deviate from the IDEAʹs default 15 1 rule, as New York does, by placing the initial burden on the school board. See id. 2 at 61 62 (declining to decide the issue). 3 We need not answer that question here. ʺBecause the [SRO] . . . concluded 4 that the IEP[ was] proper, and the courts are bound to exhibit deference to that 5 decision, the burden of demonstrating that the . . . [SRO] erred is properly 6 understood to fall on the plaintiff[].ʺ M.H., 685 F.3d at 225 n.3. Moreover, 7 because the standard here is preponderance of the evidence, ʺwhich party bore 8 the burden of persuasion in the state review scheme is only relevant if the 9 evidence was in equipoise.ʺ Id. As we explain below, we think that Reyes has 10 met her burden on appeal.5 5 The language of the SROʹs decision does suggest that he required Reyes to prove that the IEP was adequate, thereby shifting the burden in contravention of New York law. In particular, the passage regarding P.S. 79ʹs ability to meet R.P.ʹs sensory needs and its use of the TEACCH methodology suggests that the SRO required Reyes to prove that R.P.ʹs IEP was inadequate: I find the parentʹs concerns regarding the assigned schoolʹs ability to address the studentʹs sensory needs, and the appropriateness of the TEACCH methodology utilized in the assigned 6:1+1 special class to address the studentʹs educational needs are not supported by the preponderance of the evidence contained in the hearing record. SRO Decision at 18 (emphasis added), J.A. 185. While we do not address whether New Yorkʹs assignment of the burden of proof is proper under Schaffer, the SROʹs failure to adhere to state law decreases our confidence in the thoroughness of his decision. 16 1 B. Challenges to the IEPʹs Substantive Adequacy 2 Reyesʹs contentions that the 6:1:1 class with three months of 1:1 3 paraprofessional support was inadequate, that P.S. 79 was incapable of 4 addressing R.P.ʹs sensory needs, and that the TEACCH methodology was 5 inappropriate for R.P. all challenge the substantive adequacy of R.P.ʹs IEP. For 6 this reason, if Reyes prevails on any one of these arguments, DOE has failed to 7 prove that its proposed IEP provided R.P. with a FAPE. See R.E., 694 F.3d at 190. 8 9 1. The Class Ratio and the ʺTransitionalʺ Paraprofessional. Reyes argues that the class ratio specified in the IEP, comprising both the 6:1:1 placement and the 10 dedicated paraprofessional for three months only, was inappropriate to meet 11 R.P.ʹs academic and behavioral needs. As a threshold matter, we must decide 12 whether the SRO improperly relied on testimony asserting that R.P.ʹs IEP could 13 have been modified to include additional services. Because we agree with the 14 district court that the SROʹs reliance on this evidence was improper, see Reyes, 15 2012 WL 6136493, at *6, 2012 U.S. Dist. LEXIS 175329, at *16 *17, we consider 16 whether the IEP as written was sufficient to provide R.P. with a FAPE. 17 We first conclude that the SROʹs reliance on testimony that the IEP could 18 be modified to extend the paraprofessionalʹs services was improper under R.E. v. 19 New York City Department of Education, 694 F.3d at 174. R.E. prohibits using 17 1 retrospective testimony6 ʺto materially alter a deficient written IEP by 2 establishing that the student would have received services beyond those listed in 3 the IEP.ʺ Id. ʺThe purpose of discouraging reliance on . . . ʹretrospectiveʹ 4 testimony . . . is to ensure that parents can make placement decisions for their 5 children based solely on the information made available to them by the 6 Department at the time of the placement decision.ʺ B.R. v. N.Y.C. Depʹt of Educ., 7 910 F. Supp. 2d 670, 676 77 (S.D.N.Y. 2012) (citing R.E., 694 F.3d at 186). At the 8 time when she had to decide where to place R.P., Reyes could not know whether 9 DOE would offer R.P. the services of a paraprofessional for more than the three 10 months specified in the IEP. We therefore think it contrary to the logic of R.E., 11 and of the IDEA itself, to penalize her for relying upon the IEPʹs description of 12 services in making the placement decision. 13 DOE argues that the testimony here was not retrospective because the IEP 14 reflected the ʺunderstandingʺ that R.P.ʹs needs would be reevaluated at the end of 15 three months and his IEP amended to extend the paraprofessionalʹs services if 16 they were still required. Appellee Br. at 32 34. We think it inappropriate, 6 ʺRetrospective testimonyʺ is a term of art originated in this Circuit in 2012 to refer to testimony about additional services that would have been provided had the parent accepted the school districtʹs proposed placement. R.E., 694 F.3d at 185. 18 1 however, to take into account the possibility of mid year amendments in 2 determining whether an IEP as originally formulated was substantively 3 adequate. The IDEA provides for the amendment of any IEP in the middle of the 4 school year with the parentʹs consent and according to a statutorily prescribed 5 process. 20 U.S.C. § 1414(d)(3) (4). New York law also provides a procedure for 6 making such modifications. N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(g). An 7 IEP that contemplates or implies the possibility of amendments is therefore not 8 substantively different from an IEP that is silent on the issue. If the school district 9 were permitted to rely on the possibility of subsequent modifications to defend 10 the IEP as originally drafted, then it could defeat any challenge to any IEP by 11 hypothesizing about what amendments could have taken place over the course of 12 a year. 13 Such an approach would, we think, undermine a core purpose of the 14 IDEA: to ensure an orderly annual review of a childʹs needs and to provide for 15 them in a comprehensive plan. The IDEA requires that each IEP include ʺa 16 statement of measurable annual goals, including academic and functional goals, 17 designed to . . . enable the child to . . . make progress.ʺ 20 U.S.C. § 18 1414(d)(1)(A)(i)(II)(aa) (emphasis added). It also mandates that special education 19 and related services be provided to allow the child ʺto advance appropriately 19 1 toward attaining the annual goals.ʺ Id. § 1414(d)(1)(A)(i)(IV)(aa); see also N.Y. 2 Comp. Codes R. & Regs. tit. 8 § 200.4(d)(2)(iii) (requiring that the IEP include 3 ʺ[m]easurable annual goalsʺ). The IDEA further requires that each childʹs IEP be 4 reviewed ʺperiodically, but not less frequently than annually,ʺ 20 U.S.C. 5 § 1414(d)(4)(A)(i), and be ʺin effectʺ ʺ[a]t the beginning of each school year,ʺ id. 6 § 1414 (d)(2)(A); see also N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(f) (requiring 7 that IEPs be ʺreviewed and, if appropriate, revised, periodically but not less than 8 annuallyʺ). If we were to accept DOEʹs arguments relying on the possibility that 9 there could be a later amendment to R.P.ʹs IEP, then we would effectively require 10 every parent to consider the likelihood of mid year amendments in evaluating 11 his or her childʹs IEP. This approach would create significant uncertainty 12 regarding what special education and related services the child would actually 13 receive over the course of the academic year, undermining the tuition 14 reimbursement system and the IDEAʹs promise of a free appropriate public 15 education for every child with a disability. R.E., 694 F.3d at 186 (ʺIn order for this 16 system to function properly, parents must have sufficient information about the 17 IEP to make an informed decision as to its adequacy prior to making a placement 18 decision.ʺ). We therefore do not take into account the possibility of mid year 19 amendments when assessing the substantive adequacy of the IEP. For this 20 1 reason, we understand R.P.ʹs IEP to provide only for a 6:1:1 student faculty 2 paraprofessional ratio, with additional 1:1 paraprofessional support terminating 3 at the end of a three month transition period. 4 In considering the substantive adequacy of R.P.ʹs IEP, we recognize that 5 school districts are not required to ʺmaximize the potentialʺ of students with 6 disabilities, but instead must offer only ʺa basic floor of opportunity.ʺ Rowley, 7 458 U.S. at 200 (internal quotation marks omitted). School districts do this when 8 they formulate an IEP that is ʺreasonably calculated to enable the child to receive 9 educational benefits,ʺ id. at 207, that is, ʺlikely to produce progress, not 10 11 regression,ʺ Walczak, 142 F.3d at 130 (internal quotation marks omitted). The SRO, rejecting the IHOʹs determination, did not find support in the 12 record for Reyesʹs argument that R.P. ʺrequired 1:1 paraprofessional services 13 extended beyond three months in order to receive educational benefits from the 14 districtʹs recommended program.ʺ SRO Decision at 13, J.A. 180. The SRO based 15 his conclusion on McCourtʹs testimony that R.P. did not have a dedicated 16 paraprofessional at the Rebecca School. However, McCourt also testified that 17 R.P. did not require a one on one paraprofessional in that placement because the 18 school met his needs with its 8:1:3 staffing ratio, which effectively provided one 19 professional for every two students. The fact that R.P. did not need a dedicated 21 1 paraprofessional in a 2:1 environment does not necessarily indicate he would not 2 need one in DOEʹs less staff intensive 3:1 environment. Indeed, McCourt 3 testified that the 6:1:1 placement ʺwould not be a good placement for [R.P.]ʺ 4 because it offered only a 3:1 model, and R.P.ʹs 2009 2010 teacher thought that the 5 6:1:1 placement was ʺtoo largeʺ for him. Hearing Tr. at 209, J.A. 492; id. at 88, J.A. 6 371; CSE Meeting Minutes (May 20, 2010), J.A. 1014. And although the SRO cited 7 a Rebecca School progress report stating that R.P.ʹs ability to remain regulated for 8 longer periods of time had improved, as had his communication skills and ability 9 to ask for help to regulate himself, McCourtʹs testimony made clear that, in her 10 view, R.P. nonetheless required sensory breaks about every 20 minutes to be 11 ʺable to engage and attend and learn.ʺ Hearing Tr. at 205, J.A. 488. 12 The SRO also pointed to the November 2009 classroom observation which 13 detailed R.P.ʹs ʺabilities to answer questions posed by personnel, ask a peer a 14 question, accept redirection and prompts related to activities, and to determine 15 which activities were on the classroom schedule for the day.ʺ SRO Decision at 11, 16 J.A. 178. Yet these interactions took place in a classroom containing at first five 17 students and three adults, and later seven students and five adults. And over the 18 course of the thirty minute evaluation, Fochetta, the DOE psychologist who 19 conducted the observation, noted that R.P. was rocking back and forth on six 22 1 separate occasions and had to be redirected toward class activities several times. 2 Even Fochetta, on whose testimony the SRO principally relied, recognized that 3 R.P. required a 1:1 paraprofessional at least transitionally and conceded that 4 ʺthere [wa]s the potential for him needing it longerʺ than three months, which 5 ʺwas a minimum.ʺ Hearing Tr. at 73, J.A. 356; id. at 102, J.A. 385. 6 In light of this evidence, we defer to the IHOʹs well reasoned 7 determination that R.P. required the services of a 1:1 paraprofessional for longer 8 than the transitional three month period afforded him by his IEP. The class ratio 9 specified in R.P.ʹs IEP therefore constituted a denial of FAPE. 10 2. R.P.ʹs Sensory Needs and TEACCH Methodology.7 Reyes also argues that 11 P.S. 79 was unable to meet R.P.ʹs sensory needs and that the TEACCH 12 methodology employed in every 6:1:1 class at the school would not enable R.P to 13 receive educational benefits. Because we find for Reyes on another ground, we 14 need not and do not address these issues. However, we do note that, to the 15 extent that the SRO relied on retrospective testimony8 to dismiss Reyesʹs concerns 7 See note 3, supra, for definition. 8 Such testimony included Duquetteʹs representation that she would have tailored her implementation of the TEACCH methodology to R.P.ʹs individual needs, see Reyes, 2012 WL 6136493, at *8, 2012 U.S. Dist. LEXIS 175329, at *22, and McCourtʹs statement that R.P.ʹs ʺindependence in the [Rebecca S]chool ha[d] gotten much better,ʺ SRO Decision at 17, J.A. 184, in the school year following 23 1 about the TEACCH methodology, such reliance was inappropriate under R.E. v. 2 New York City Department of Education, 694 F.3d at 185 87. 3 4 CONCLUSION Because we conclude that the Department of Education failed to offer R.P. 5 a free appropriate public education, we REVERSE the judgment of the district 6 court and REMAND the case to the district court to consider the appropriateness 7 of Reyesʹs private placement and the balance of the equities. 8 Reyesʹs rejection of the DOE placement. 24 1 APPENDIX 2 Glossary of Acronyms 3 CSE Local Committee on Special Education 4 DOE New York City Department of Education 5 FAPE Free Appropriate Public Education 6 IDEA Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. 7 IEP Individualized Education Program 8 IHO Impartial Hearing Officer 9 R.P. Son of plaintiff Reyes 10 SRO State Review Officer 11 12 13 TEACCH Treatment and Education of Autistic and Related Communication Handicapped Children, a method for teaching children with autism 25
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